GOVERNMENTAL IMMUNITY MUST BE PRESERVED AT ALL COST:
KNOW-NOTHING DEFENSE PLUS
City of San Antonio v Roxana Tenorio, individually and o/b/o Pedro Tenorio, deceased. No. 16-0356 (Tex. March 23, 2018) (Majority opinion by Justice Phil Johnson, joined by Justices Green, Devine, and Brown) (dismissing wrongful-death and personal injury case brought against the City by wife of motorcycle rider killed in wrong-way crash by driver being chased by police as jurisdictionally barred without regard to the merits).
CITY OF SAN ANTONIO v. ROXANA TENORIO, INDIVIDUALLY AND ON BEHALF OF PEDRO TENORIO, DECEASED; from Bexar County; 4th Court of Appeals District
(04-15-00259-CV, ___ SW3d ___, 01-27-16)
Justice Johnson delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Devine, and Justice Brown joined.
Justice Guzman delivered a dissenting opinion declining to overrule precedent relied upon by majority.
Justice Boyd delivered a dissenting opinion calling for Cathy v Booth to be overruled as misconstruing the Tort Claims Act, in which Justice Lehrmann and Justice Blacklock joined.
View Electronic Briefs | No Oral Argument
SUBCHAPTER B. TORT LIABILITY OF GOVERNMENTAL UNITSSUBCHAPTER D. PROCEDURESSec. 101.101. NOTICE. (a) A governmental unit is entitled to receive notice of a claim against it under this chapter 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.(b) A city's charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved.(c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do 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.Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.------------NO. 16-0356------------CITY OF SAN ANTONIO, PETITIONER,v.ROXANA TENORIO, INDIVIDUALLY AND ON BEHALF OF PEDRO TENORIO, DECEASED, RESPONDENT----------------------------------------------------ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS----------------------------------------------------JUSTICE JOHNSON delivered the opinion of the Court, in which CHIEF JUSTICE HECHT,JUSTICE GREEN, JUSTICE DEVINE, and JUSTICE BROWN joined.JUSTICE GUZMAN filed a dissenting opinion.JUSTICE BOYD filed a dissenting opinion, in which JUSTICE LEHRMANN and JUSTICEBLACKLOCK joined.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.CITY OF SAN ANTONIO, Petitioner, v. ROXANA TENORIO, INDIVIDUALLY AND ON BEHALF OF PEDRO TENORIO, DECEASED, Respondent.
No. 16-0356. Opinion delivered: March 23, 2018. 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. ___ S.W.3d ___ (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 ___ (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 ___.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, and (3) the case report to show that the City had subjective awareness its officers were at fault in several ways regarding their pursuit of Garza and that their fault was related to the collision and resulting injuries. An SAPD investigator prepared the crash report on the day of the collision. The investigator indicated that "Contributing Factors (Investigator's Opinion)" included "Fleeing or Evading Police." The investigator's narrative stated that Garza "drove onto the main lanes of the [highway] against oncoming traffic and collided with" the Tenorios' motorcycle. The case report indicated that Garza "was suspected to be involved in a robbery with a deadly weapon"; "while evading police in the vehicle [Garza] drove the wrong way down the highway and struck a motorcycle with 2 passenger [sic]"; and as Garza "was fleeing the police he jumped onto the main lanes and struck" the Tenorios. Garza was charged, among other things, with "Evading Arrest/Detention — Causing Death."In support of its plea to the jurisdiction, the City presented statements from two SAPD officers who were pursuing Garza. One of the officers stated that he informed the dispatcher of their direction of travel, speed, and traffic conditions, and immediately asked for and received supervisory approval to continue the pursuit. The officer also continually gave updates on speed, direction, and traffic conditions. However, as soon as the officer saw Garza's vehicle veer off the road and enter the Loop exit ramp traveling against traffic, he broadcast an order on the radio for all officers to terminate the pursuit. He opined that Garza traveled approximately 300 feet after entering the Loop before colliding with the Tenorios' motorcycle. The officer in the other car participating in the pursuit averred that he heard an order over the radio to terminate the pursuit as soon as Garza drove onto the exit ramp traveling the wrong direction. After hearing the order, that officer took a turnaround and entered the northbound lanes of the Loop traveling in the proper direction for traffic rather than pursuing Garza onto the Loop against traffic.The City also submitted statements from eight witnesses in different vehicles. The witnesses confirmed that once Garza drove onto the ramp traveling against traffic, the SAPD officers stopped their pursuit.The court of appeals relied on the investigating officer's statement in the crash report that a factor contributing to the crash was Garza's "Fleeing or Evading Police" as evidence creating a fact issue as to whether the City was subjectively aware that it was at fault. ___ S.W.3d at ___. The court noted that absent such opinion in the Crash Report, this case would be similar to Muniz v. Cameron County. Id. at ___ (citing Muniz v. Cameron Cty., No. 13-10-00689-CV, 2012 WL 1656326 (Tex. App.-Corpus Christi May 10, 2012, pet. denied)). In Muniz, a deputy pursued a truck after attempting to pull it over as part of a routine traffic stop. 2012 WL 1656326, at *1. The truck veered into the path of oncoming traffic and struck and killed Margarita Muniz. Id. The accident occurred less than two miles from where the deputy first observed the truck, and the entire pursuit lasted about a minute. Id. The police report stated that the driver of the truck was responsible for the accident and Muniz's death. Id. at *1-2. In their suit against the County, the Muniz family alleged that the County was liable for damages because the deputy initiated and continued a reckless, high-speed pursuit. Id. The family also alleged that the deputy bumped into the driver's truck several times, causing it to move into oncoming traffic. Id. The family supported this allegation with an affidavit from the fleeing driver, stating that he would not have wrecked if the deputy had not bumped him. Id. However, nothing in the police report nor the dispatch log suggested that the deputy bumped into the truck. Id. at *5. The court of appeals held that the driver's veering his truck into Muniz's lane and causing her death, combined with the fact that the there was no report to the effect that the deputy hit either vehicle, gave notice only of the pursuit and were insufficient to place the County on actual notice that Muniz's family would attempt to hold it responsible for her death. Id. at *6. The court of appeals concluded that Munizwas distinguishable from this case because the police report in this case specifically notes Garza's "Fleeing or Evading Police" as a factor contributing to the fatal collision. ___ S.W.3d at ___.In contrast, in Arancibia, a hospital supervisor noted that a technical error was made, clinical management contributed to the patient's death, and the care was not necessarily consistent with established standards. 324 S.W.3d at 549. In that case, the supervisor's "ultimate conclusion that those errors were acceptable [did] not detract from his subjective awareness that medical error contributed to" the patient's death. Id. at 549-50. The government conceded that surgical error resulted in the perforation of the patient's intestines and ultimately resulted in her death. Id. at 550.Evidence that a vehicle being pursued by the police is involved in a collision is not, by itself, sufficient to raise a fact question about whether the City, for purposes of the TTCA, had subjective awareness that it was in some manner at fault in connection with the collision. While the crash report listed a factor and condition contributing to the crash as "Fleeing or Evading Police," this is not an express statement or even an implication that the officers or the City were at fault in regard to the collision. See Carbajal, 324 S.W.3d at 538-39. If it were, the actual notice provision of the TTCA would be meaningless in evading police situations: actual notice would exist every time a collision with injuries or property damage occurred when a driver was fleeing or evading police, regardless of the other facts. See Cathey, 900 S.W.2d at 341.Tenorio correctly asserts that the City's belief that its employees were not negligent does not mean that the City did not have subjective awareness that it was at fault in connection with the collision. However, nothing in the crash report, witness statements, or case report indicate, either expressly or impliedly, that the SAPD subjectively believed its officers acted in error by initiating or continuing the pursuit such that they were in some manner responsible for the injuries. Accordingly, the City did not have actual notice that it was at fault in connection with the collision, as is required by the TTCA for the City's immunity to have been waived. That being so, the trial court lacked jurisdiction over the claims.III. Response to the Dissents
JUSTICE GUZMAN would hold that a fact question exits as to whether the City had actual notice of Tenorio's claims. She concludes that the police investigation, the crash report, and a witness statement constitute circumstantial evidence that the City was on notice that its alleged fault was a producing or contributing factor to the Tenorios' injuries. Post at ___ (Guzman, J., dissenting). But as noted above, we explained in Cathey that for a governmental entity to have actual notice, it must have subjective awareness that its fault, as alleged by the claimant, produced or contributed to the claimed injuries. See Cathey, 900 S.W.2d at 341. JUSTICE GUZMAN does not point to any evidence that the City was subjectively aware that its fault produced or contributed to the injuries or that the City believed its employees were negligent or acted in error, and instead concludes that subjective awareness of potential fault satisfies the notice requirement. See id.(noting that the evidence did not raise a fact issue that the defendant had actual notice of any alleged culpability). Further, we have recognized that it is not enough that the governmental unit conducted an investigation. Simons, 140 S.W.3d at 348.JUSTICE BOYD asserts that because he disagrees with the Court's interpretation of section 101.101(c) in Cathey, he would overrule that case (and those that have followed and relied upon it) and hold that the City had actual notice of Tenorio's claims. But as JUSTICE BOYD recognizes, Tenorio does not argue that Catheywas incorrectly decided or that we should overrule it. Post at ___ (Boyd, J., dissenting); see Dall. Cty. Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 883 (Tex. 2005) (noting that the Court does not address issues not raised by the parties). And as JUSTICE BOYD further recognizes, "The doctrine of stare decisis `has its greatest force' in `the area of statutory construction' because `the Legislature can rectify a court's mistake, and if the Legislature does not do so, there is little reason for the court to reconsider whether its decision was correct.'" Post at ___ (quoting Sw. Bell Tel. Co. v. Mitchell, 276 S.W.3d 443, 447 (Tex. 2008)).JUSTICE BOYD would not apply the legislative acceptance doctrine here for multiple reasons. First, he claims the Legislature's failure to amend a statute does not equate to legislative approval because we do not generally attach significance to the Legislature's failure to act. Post at ___. But in discussing the legislative acceptance doctrine, we have acknowledged that "the effect which should be given to legislative inaction varies with circumstances." Moss v. Gibbs, 370 S.W.2d 452, 458 (Tex. 1963). There we agreed with the United States Supreme Court that "when the questions are of statutory construction, not of constitutional import, [the Legislature] can rectify our mistake, if such it was, or change its policy at any time, and in these circumstances reversal is not readily to be made." Id. at 458-59 (quoting United States v. S. Buffalo Ry. Co., 333 U.S. 771, 774-75 (1948)). Because in that case the Legislature had not amended a statute in the twenty-six years since we had interpreted it, we concluded it was "now a policy matter for the Legislature." Id. at 458.JUSTICE BOYD also claims that legislative inaction cannot be interpreted as legislative acceptance here because the Court has failed to express a clear and understandable rule with regard to the 101.101(c) requirements. Post at ___ (citing Grapevine Excavation, Inc. v. Md. Lloyds, 35 S.W.3d 1, 6 (Tex. 2000) (Phillips, C.J., dissenting). But had the Legislature believed that Cathey imposed unclear requirements, the Legislature could have clarified those requirements. See Moss, 370 S.W.2d at 458.Next, JUSTICE BOYD asserts that the language of section 101.101(c) is unambiguous and the legislative acceptance doctrine does not apply when a statute is unambiguous. Post at ___. "A statute is ambiguous if its words are susceptible to two or more reasonable interpretations, and we `cannot discern legislative intent in the language of the statute itself.'" Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 41 (Tex. 2017)(quoting Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 639 (Tex. 2010)). While JUSTICE BOYD asserts that the language is unambiguous and thus it has only one meaning, the Cathey Court analyzed the statutory language and interpreted it differently than he would. Cathey, 900 S.W.2d at 341. The passage of time and lack of legislative action indicate that the Court in Cathey did not misread the statutory language. This validates the Court's interpretation at least to the extent that the statutory language is susceptible to two or more reasonable interpretations and thus, at a minimum, is ambiguous.Finally, JUSTICE BOYD claims that the legislative acceptance doctrine only applies when a statute is re-enacted without change, and section 101.101 has not been amended or re-enacted. Post at ___. While the Legislature has not amended or re-enacted section 101.101, it has amended other sections of the TTCA every session but two since Cathey was decided in 1995. Further, this Court has applied the legislative acceptance doctrine in instances where the Legislature failed to act. See, e.g., Krishnan v. Sepulveda, 916 S.W.2d 478, 481 (Tex. 1995) ("[T]he Legislature has not amended the wrongful death and survival statutes. . . . Such Legislative inaction suggests approval of our holdings. . . ."); Moss, 370 S.W.2d at 458 (noting that thirteen legislative sessions had passed since the Court construed the statute at issue and that legislative inaction indicated "legislative approval" of the construction or "that the general dissatisfaction therewith was not of sufficient strength to impel legislative action")."Adhering to precedent fosters efficiency, fairness, and legitimacy. More practically it results in predictability in the law, which allows people to rationally order their conduct and affairs." Grapevine Excavation, Inc. v. Maryland Lloyds, 35 S.W.3d 1, 5 (Tex. 2000) (citation omitted). We decline to overrule Cathey.IV. Conclusion
We grant the petition for review. Without hearing oral argument, we reverse the judgment of the court of appeals and render judgment dismissing the cause for want of jurisdiction. See TEX. R. APP. P. 59.1.
OPINION OF THE COURT OF APPEALS BELOW
CITY OF SAN ANTONIO, Appellant, v. Roxana TENORIO, Individually and on Behalf of Pedro Tenorio, Deceased, Appellee.
No. 04-15-00259-CV. Delivered and Filed: January 27, 2016. Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C. Martinez, Justice, Jason Pulliam, Justice.MEMORANDUM OPINION
REBECA C. MARTINEZ, Justice.The City of San Antonio appeals from an interlocutory order denying its plea to the jurisdiction. Because we believe a fact issue exists as to whether the City received actual notice of the plaintiff's claims against it, we affirm the trial court's order and remand for further proceedings.BACKGROUND
On September 21, 2012, officers from the San Antonio Police Department (SAPD) responded to a home invasion. The suspect, Benito Garza, fled the scene in a car and was pursued by SAPD at a high rate of speed. The chase was suspended when Garza entered the exit ramp of Interstate Loop 410 traveling the wrong direction into oncoming traffic. See Garza v. State, No. 04-14-00682-CR, 2015 WL 4643738, at *1 (Tex. App.-San Antonio Aug. 5, 2015, no pet.) (mem. op., not designated for publication). Approximately one minute after he entered the freeway, Garza ran head-on into a motorcycle carrying Pedro and Roxana Tenorio. Pedro was killed on impact and Roxana was severely injured.Roxana Tenorio, individually and on behalf of Pedro, brought suit against the City under the Texas Tort Claims Act, alleging the SAPD officers were negligent in initiating and continuing the high speed chase and in failing to terminate the high speed chase. The City filed a plea to the jurisdiction in which it asserted that Tenorio failed to provide the requisite notice of her claims within six months as required by section 101.101(a) of the Texas Civil Practice and Remedies Code or within ninety days as required under Article XII, Section 150 of the City of San Antonio Charter. In response, Tenorio did not deny that she had not provided formal notice, but instead argued that the City had actual notice of her claims as a result of the Texas Peace Officer's Crash Report prepared by SAPD after the accident; a number of written witness statements; and the SAPD Incident Report.After a hearing, the trial court denied the City's plea to the jurisdiction, and the City pursued this interlocutory appeal.STANDARD OF REVIEW
A plea to the jurisdiction challenges a trial court's subject matter jurisdiction. City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per curiam). The purpose of a plea to the jurisdiction is not to force the plaintiff to preview her case, but to establish a reason why the merits of the plaintiff's claim should never be reached. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review the trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Carbajal, 324 S.W.3d at 538.When a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court must review the relevant evidence to determine whether a fact issue exists. The Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010) (per curiam). The plaintiff bears the burden to allege facts demonstrating jurisdiction, and the trial court construes the pleadings liberally in the plaintiff's favor. Id. If the evidence raises a fact question on jurisdiction, the trial court cannot grant the plea, and the issue must be resolved by the trier of fact. Id. On the other hand, if the evidence is undisputed or fails to raise a fact question, the trial court must rule on the plea as a matter of law. Id. Just as we would in a summary judgment context, when considering this evidence, we "take as true all evidence favorable to the nonmovant" and "indulge every reasonable inference and resolve any doubts in the nonmovant's favor." City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009) (citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004)).DISCUSSION
"Absent a valid statutory or constitutional waiver, trial courts lack subject-matter jurisdiction to adjudicate lawsuits against municipalities." Suarez v. City of Texas City,465 S.W.3d 623, 631-32 (Tex. 2015) (citing City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014); Miranda, 133 S.W.3d at 224; Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)). Under the Texas Tort Claims Act (TTCA), the legislature has clearly and unambiguously waived governmental immunity from liability and from suit for certain tort claims arising out of its governmental functions, as specified in the statute. TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021-.029 (West 2011 & Supp. 2015). As a prerequisite to bringing suit against a governmental unit under the TTCA, a claimant is required to abide by the notice requirements set out in section 101.101 of the Texas Civil Practice and Remedies Code. Id. § 101.101 (West 2011). "[T]he purpose of the notice requirement in section 101.101 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.'" Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 360 (Tex. 2004) (quoting Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam)). The failure to comply with the notice requirements deprives the trial court of jurisdiction. TEX. GOV'T CODE ANN. § 311.034 (West 2013).Section 101.101 of the TTCA provides in pertinent part:(a) A governmental unit is entitled to receive notice of a claim against it under this chapter 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.(b) A city's charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved.[1](c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do 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.TEX. CIV. PRAC. & REM. CODE ANN. § 101.101.It is undisputed that Tenorio failed to provide the City with formal, written notice of her claims against it pursuant to either subsection (a) or (b). See id. § 101.101(a), (b). Tenorio asserts, however, that the City received actual notice of her claims. See id. § 101.101(c). In Cathey, the Texas Supreme Court explained that a governmental unit has actual notice of a claim when it has "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, 900 S.W.2d at 341. In Simons, the court subsequently clarified its interpretation of the "knowledge of alleged fault" requirement for actual notice:What 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 claimed injury. . . . 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 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, 347-48 (Tex. 2004) (emphasis added). In enacting subsection (c), the Legislature chose to provide an alternative method of providing notice, even though this makes determining compliance with section 101.101 "somewhat less certain." Id. at 348. Whether a governmental unit has actual notice is a fact question when the evidence is disputed, but may be determined as a matter of law where the evidence is insufficient to raise a fact issue. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 549 (Tex. 2010); Simons, 140 S.W.3d at 138. "Fault, as it pertains to actual notice, is not synonymous with liability; rather, it implies responsibility for the injury claimed." Estate of Arancibia, 324 S.W.3d at 550.The City contends the mere fact that SAPD investigated the accident is insufficient to provide the City with actual notice. The Texas Supreme Court made clear in City of Dallas v. Carbajal that investigation alone will not put a governmental entity on notice that it may be sued. 324 S.W.3d at 538-39. The court, however, "did not establish a bright-line rule stating that a routine safety investigation will never provide a governmental unit with actual notice of its fault." Ortiz-Guevara v. City of Houston, No. 14-13-00384-CV, 2014 WL 1618371, at *3 (Tex. App.-Houston [14th Dist.] Apr. 22, 2014, no pet.) (mem. op.). Rather, the court held that the evidence was lacking in that case because the police report did not say who failed to erect or maintain the barricades at issue,[2] and therefore the report failed to provide the City "with subjective awareness of fault because [the report] did not even imply, let alone expressly state, that the City was at fault." Carbajal, 324 S.W.3d at 539. Thus, we must consider the evidence in the record before us in the light most favorable to Tenorio to determine what facts the investigation performed in this case revealed to the City.Among the evidence attached to the City's plea to the jurisdiction was (1) the Texas Peace Officer's Crash Report; (2) the written statements of ten witnesses and police officers; and (3) the SAPD Offense Report concerning the accident. Tenorio attached the following evidence to her amended response to the plea to the jurisdiction: (1) San Antonio Police Department Procedures; (2) SAPD Pursuit Evaluation Report; and (3) the deposition of SAPD Deputy Chief Roy Waldhelm. The City argues that none of the evidence in the record alleges that the City, or any employee of the City, caused the accident, was at fault, did anything wrong, or was in any way culpable, and thus, the City did not have actual notice of Tenorio's claims. We must be careful, however, not to overstate the plaintiff's burden at this juncture. The determination to be made at this preliminary stage of the proceedings is not whether there is evidence in the record showing that SAPD negligently initiated the pursuit or negligently failed to terminate the pursuit, but rather, whether there is 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. See Simons, 140 S.W.3d at 347-48. Applying this standard, we conclude the evidence in this case raises a fact issue as to whether the City was subjectively aware of its responsibility, as alleged by Tenorio, for the injuries suffered by Pedro and Roxana.The SAPD Pursuit Evaluation Report was prepared on October 3, 2012, thirty-one days after the accident. Included in the report is the Texas Peace Officer's Crash Report. The report is dated September 21, 2012, the same date as the accident. Box No. 36 of the crash report is titled "Contributing Factors (Investigator's Opinion)." The investigating officer opined that a factor and condition "contributing" to the crash was Garza's "Fleeing or Evading Police." Absent this finding in the report, the case before us might be similar to Muniz v. Cameron Cnty., No. 13-10-00689-CV, 2012 WL 1656326 (Tex. App.-Corpus Christi May 10, 2012, pet. denied) (mem. op.). In Muniz, a police officer was pursuing a pickup truck traveling at a high rate of speed when the truck veered into oncoming traffic and struck another vehicle, killing the occupant. Id. at *1. In the police report, the investigating officer determined that the driver of the pickup truck—who was driving under the influence of multiple drugs at the time of the accident—was solely responsible for the accident and consequently, the death of the occupant of the vehicle. Id. at *2. The family of the deceased filed a lawsuit against the County alleging that the deputy initiated and continued a reckless, high-speed pursuit and caused the collision by bumping the pickup truck into oncoming traffic. Id. In response, the County filed a plea to the jurisdiction asserting that it had not been provided with the requisite notice under section 101.101(c). Id. The Thirteenth Court of Appeals affirmed the trial court's granting of the plea to the jurisdiction, holding that nothing in the police report or dispatch log suggested that the deputy caused the collision as alleged, and thus the County was not placed on notice that appellants would seek to hold it responsible for the fatal collision. Id. at *6.Unlike Muniz, we are presented with a police report that specifically notes that Garza's fleeing or evading police was a factor contributing to the fatal collision. It stands to reason that there can be no fleeing or evading without pursuit or chase by the police. Hence, the evidence indicates that SAPD's active pursuit was a factor contributing to Garza's entering the freeway in the wrong direction and his head-on collision with the Tenorios within a minute of entering the freeway. The crash report need not indicate that SAPD acted unreasonably, but must only provide a "subjective signal" to the City within the 90-day period required by the City's charter "that there might be a claim, even if unfounded, at issue." Univ. of Tex. Health Sci. Ctr. at Houston v. McQueen, 431 S.W.3d 750, 761 (Tex. App.-Houston [14th Dist.] 2014, no pet.). Subjective awareness of fault is not implied anytime there is a high speed pursuit that results in an accident. We hold only that the crash report in this record specifically indicating that "Fleeing or Evading Police" was a factor contributing to the accident raises a fact issue as to whether the City was aware of its role in contributing to the claimed injuries.As noted earlier, the purpose of the notice requirement is to enable governmental units to investigate and address potential claims appropriately, and that purpose is satisfied by the City's knowledge that police evasion contributed to the collision at issue. See Estate of Arancibia, 324 S.W.3d at 550. Section 101.101 does not require an "unqualified confession of fault." Id. Nor does it require complete and exclusive liability. Ortiz-Guevara, 2014 WL 1618371, at *4. Here, the crash report includes information about (1) the time, date, place, and circumstances of the accident; (2) the fact that Garza entered the freeway driving the wrong direction in response to police pursuit, and the accident occurred one minute after Garza entered the freeway in response to police pursuit; and (3) the identity of the parties, and the fact that Pedro was killed and Roxana was severely injured. Viewing the evidence in the light most favorable to Tenorio, as we must, we conclude the investigating officer's listing of "Fleeing or Evading Police" as a factor contributing to the accident in her report raises a fact issue as to whether the City had subjective awareness of its fault, as alleged by Tenorio, in contributing to the claimed injuries. Given that a fact issue exists regarding whether the City received actual notice of Tenorio's claims against it, the trial court did not err in denying the City's plea to the jurisdiction. See Simons, 140 S.W.3d at 348; Miranda, 133 S.W.3d at 228. Accordingly, we affirm the trial court's order denying the City's plea to the jurisdiction and remand for further proceedings.DISSENTING OPINION
JASON PULLIAM, Justice.Review of the undisputed facts in this case reveals there cannot be an issue of fact with regard to whether the City of San Antonio received actual notice of Ms. Tenorio's claims against it. Under the undisputed facts presented, I would hold there is no fact issue whether the City of San Antonio was subjectively aware of its potential fault in causing the accident from which Ms. Tenorio asserts her injuries and damages arose. In fact, the undisputed facts and evidence conclusively establish the City of San Antonio was not subjectively aware of its potential fault in causing the subject accident. For this reason, the trial court lacks jurisdiction, and therefore, the trial court erred by denying the City of San Antonio's plea to the jurisdiction. Because the majority opinion concludes there is a fact issue regarding the City of San Antonio's receipt of actual notice, I must respectfully dissent.STANDARD OF REVIEW
A plea to the jurisdiction is a dilatory plea which challenges a trial court's authority to determine the subject matter of an asserted cause of action without defeating the merits of the case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Appellate review of a trial court's ruling on a jurisdictional plea is conducted in a two-step sequential analysis. Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226-28 (Tex. 2004). First, the issue whether the non-movant alleged facts sufficient to affirmatively demonstrate subject-matter jurisdiction is a question of law reviewed de novo. Miranda, 133 S.W.3d at 226. For this reason, appellate review begins with the non-movant's pleadings to determine if the alleged facts affirmatively demonstrate the trial court's jurisdiction to hear the cause. See id. If the facts as pled are sufficient to demonstrate jurisdiction, then any remaining jurisdictional challenge is to the existence of jurisdictional facts. In this second step, the court may consider facts and evidence even if they pertain to the substantive merits, but must confine such consideration only to those facts that are relevant to the jurisdictional issues raised. Id. (confirming the court's holding in Bland Indep. Sch. Dist., 34 S.W.3d at 555).Then, in a case in which the jurisdictional challenge implicates the merits of the plaintiffs' cause of action, and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists, limited to the jurisdictional challenge. Miranda, 133 S.W.3d at 227. Even though the facts pertaining to the merits of the case and subject matter jurisdiction may be intertwined, the court must not determine the case merits. Id. at 227-28. If examination of the evidence relevant to jurisdiction reveals a fact issue with regard to jurisdiction exists, then the plea must be denied and the issue pertaining to jurisdiction must be resolved by the fact finder. Id.; see also Univ. of Tex. Health Sci. Ctr. at San Antonio v. Stevens, 330 S.W.3d 335, 338 (Tex. App.-San Antonio 2010, no pet.).Likewise, if the facts or evidence relevant to jurisdiction are undisputed or fail to raise a fact question on the jurisdictional issue, the trial court must rule on the plea to the jurisdiction as a matter of law even if the facts or evidence pertain to the substantive merits of the case. Miranda, 133 S.W.3d at 228. In this event, the court may delve into facts and evidence pertaining to the substantive merits because such is undisputed. Id.Determination whether a trial court holds jurisdiction based upon undisputed fact or evidence is reviewed de novo. Id.ANALYSIS
In the first step of the jurisdictional analysis, Ms. Tenorio plead the City of San Antonio had actual notice of the claims asserted and no exception of the waiver of immunity applies. Therefore, Ms. Tenorio plead sufficient facts to affirmatively demonstrate subject-matter jurisdiction. Thus, jurisdictional analysis proceeds to the second step, in which the jurisdictional challenge is to the existence of jurisdictional facts. See Miranda,133 S.W.3d at 227-28.In this second step, the jurisdictional dispute pertains to the issue of the City of San Antonio's actual notice of its alleged fault in producing or contributing to the claimed injury. While determination whether the City of San Antonio received actual notice is a question of fact, this issue may be determined as a matter of law if the evidence is insufficient to raise a fact issue or if the undisputed facts or evidence conclusively shows the City of San Antonio was not subjectively aware of its alleged fault. See id.; Univ. of Texas Sw. Med. Ctr. at Dallas v. Estate of Arancibia ex rel. Vasquez-Arancibia, 324 S.W.3d 544, 549 (Tex. 2010); City of Pharr v. Aguillon, No. 13-09-00011-CV, 2010 WL 1138449, at *4 (Tex. App.-Corpus Christi, Mar. 25, 2010, no pet.).With regard to the facts pertaining to the City of San Antonio's actual notice, it is undisputed that Ms. Tenorio failed to provide statutory notice to the City of San Antonio of her intent to file suit. For this reason, to overcome the City of San Antonio's assertion of governmental immunity, and thus, invoke the trial court's jurisdiction over her claims, Ms. Tenorio was required to prove the City of San Antonio had actual notice of its potential fault in producing or contributing to the subject accident. See City of Dallas v. Carbajal, 324 S.W.3d at 537, 539 (Tex. 2010); Tex. Dep't of Criminal Justice v. Simons,140 S.W.3d 338, 347-48 (Tex. 2004); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). As explained in the majority opinion, to prove the City of San Antonio had actual notice of her claims, Ms. Tenorio must show the City of San Antonio had "subjective awareness of its fault . . . in producing or contributing to the claimed injury." See Simons, 140 S.W.3d at 347. Pertinent to this analysis, when records or investigative reports give no indication that a governmental unit is at fault in an incident, the governmental unit has no actual notice, that is, it is not subjectively aware of its alleged fault. See id. at 347-48. As explained in the precedential line of Texas Supreme Court cases Cathey, Simons and Carbajal, a governmental unit cannot acquire actual notice even by obtaining information that would reasonably suggest its culpability. See Carbajal, 324 S.W.3d at 539; Simons,140 S.W.3d at 345; Cathey, 900 S.W.2d at 341. Instead, to raise a fact issue with regard to the governmental unit's subjective awareness of its potential fault in causing the accident, the evidence must at least imply or provide some indication of fault. See Carbajal, 324 S.W.3d at 539; Simons, 140 S.W.3d at 345; Cathey, 900 S.W.2d at 341.Ms. Tenorio contends the City of San Antonio had actual notice of her claims by virtue of (1) the Texas Peace Officer's Crash Report; (2) the written statements of the witnesses; and (3) the SAPD Offense Report concerning the crash in question. Under a de novoreview, this court must review this evidence to determine if any raises a fact issue with regard to whether the City of San Antonio had subjective awareness of its alleged fault, or if the undisputed facts conclusively show the City of San Antonio was or was not subjectively aware of its alleged fault. See Miranda, 133 S.W.3d at 227-28; Estate of Arancibia, 324 S.W.3d at 549. While such evidence and this factual dispute may touch upon the substantive merits of the litigation, this court may consider such facts and evidence relevant to the jurisdictional challenge if such facts and evidence are undisputed or fail to raise a fact question with regard to the City of San Antonio's subjective awareness. However, this court must confine such consideration only to those facts that are relevant to the jurisdictional issues raised. See Miranda, 133 S.W.3d at 227-28; Estate of Arancibia, 324 S.W.3d at 549.APPLICATION
A review of the documents referenced by Ms. Tenorio reveals there is no fact issue with regard to the City of San Antonio's subjective awareness of its alleged fault. None of the documents assert, imply or present a "subjective signal" to the City of San Antonio of its potential fault, as the majority concludes. These documents do present undisputed facts which conclusively show the City of San Antonio was not subjectively aware of its alleged fault in causing the accident.The Texas Peace Officer's Crash Report did not indicate or infer any police officer actions to be a contributing factor to the cause of the accident or that any police officer did anything wrong or was at fault in any way in causing the accident. Likewise, the SAPD Offense Report does not indicate or infer any police officer actions to be a contributing factor. None of the eight witness statements implicate fault on any police officer. As held in Carbajal, Simons, and Cathey, to raise a fact issue with regard to the City of San Antonio's subjective awareness of its potential fault in causing the accident, these reports and statements must at least imply or provide some indication of fault, and absent such indication, the City of San Antonio does not have subjective awareness, and thus, there is no actual notice to the City. See Carbajal, 324 S.W.3d at 539; Simons,140 S.W.3d at 345; Cathey, 900 S.W.2d at 341.The turning point upon which the majority bases its conclusion is Box No. 36 of the Texas Peace Officer's Crash Report, labeled "Contributing Factors (Investigator's Opinion)", in which the investigating officer stated, "Fleeing or Evading Police". The majority concludes this statement must implicate fault because "[i]t stands to reason that there can be no fleeing or evading without pursuit or chase by the police." It is at this point that I must differ, as the undisputed facts and the record conclusively establish that the police officers had ceased pursuit of Garza and because established caselaw holds that pursuit alone is insufficient to place the City of San Antonio on actual notice of a potential claim. See Muniz v. Cameron Cnty., No. 13-10-00689-CV, 2012 WL 1656326, at *6 (Tex. App.-Corpus Christi May 10, 2012, pet. denied) (mem. op.).Witness Statement identified as "Exhibit B" to the plea to the jurisdiction, states, "[i]t seemed like the cop lights were stopped. Then I saw the light colored car coming toward us in the fast lane." Witness Statement identified as "Exhibit D" states, "As I was driving east, I saw police cars coming towards me with their lights on. . . . that's when I seen they were chasing a small silver car. . . . When the silver car got on the highway, by driving the wrong way on the exit ramp, the police cars turned around and took the turn around, so they could go the correct way and keep chasing the silver car." "Exhibit E" witness statement states, "The gold car then entered the 410 south mainlanes using the exit ramp from 410 north. It looked like the cop cars wanted to enter the highway the wrong way too but didn't. We continued northbound on the access road and approached the scene of the accident. . . . The gold car was the one who caused everything." "Exhibit F" witness statement states, "[t]he police cars chased the small car through the parking lot of the Shell and then the small car exited the parking lot and drove onto the exit ramp of 410 and entered the south bound lanes of 410 but was traveling north bound against traffic. When the car entered the highway, going the wrong way, I observed that the police cars stopped and did not pursue the small car onto the highway." "Exhibit H" witness statement states, "[p]rior to the accident I did not see police cars chasing this vehicle, nor did I see any police vehicles in that lane or on this side of the highway. The only time I saw police officers was after the accident had occurred and that was the officers that had pulled up on the opposite side of the highway. . . ." "Exhibit I" witness statement states, "I didn't see any cop cars chasing the small silver car and only seen them after the accident. I did not see the driver of the small silver vehicle that caused the accident." The statement from Officer Nathan Zachary, one of the officers in pursuit of Garza, states,I followed behind him as he cut through the parking lot. The driver then turned left, south, onto a dirt road that runs parallel to the northbound access road of Loop 410. I continued to follow behind him because I thought he was going to drive into the wooded area along Loop 410. I heard Off Reygadas on the police radio saying to back off the vehicle. . . . The driver entered Loop 410 from the exit ramp traveling the opposite direction of traffic. When the vehicle veered off the dirt road and onto the exit ramp Off Reygadas came on the radio saying to terminate the pursuit. I stopped on the dirt road. When I stopped the pursuit the suspect vehicle was already on Loop 410. . . .Finally, the statement from Officer Manuel Reygadas, another officer in pursuit of Garza states,[w]e continued to travel south bound on the dirt road for a short distance of approximately forty to fifty yards at which time I got on the radio and advised Officer Zachary to back off as I believed that the suspect was going to try to bail out of the vehicle into the wooded area that was near by. . . . Just after I made this broadcast, the suspect cut across the access road and entered the exit ramp of Pearsall Rd for north bound Loop 410. As the suspect committed himself to traveling the wrong way on 410 I immediately broadcasted repeatedly over the radio for all officers to cancel and terminate. . . . The suspect after entering the highway traveled approximately 300 feet prior to the first collision occurring."The San Antonio Police Department Report, written by Officer Joe Carmona, confirmed the statements of Officers Zachary and Reygadas and states,[O]nce myself and other officers secured the scene, victims, and witnesses [at the scene of the originating crime], I discovered the V3 was killed in the accident that AP1 caused while he was evading the police. AP1 also severely injured V4. . . . Apparently while AP1 was operating the listed vehicle, he was traveling south bound in the north bound lanes of SW Loop 410. As he was fleeing the police he jumped onto the main lanes and stuck V3 and V4. . . ."These reports and witness statements consistently and conclusively establish that the police pursuit of Garza had ceased by the time he entered the exit ramp and by the time he struck the motorcycle carrying the Tenorios. Officers Zachary and Reygadas's reports both establish conclusively that the order to terminate the pursuit occurred before Garza drove up the exit ramp and before he entered the highway going the wrong direction. This evidence is undisputed. Therefore, there can be no fact issue with regard to whether the pursuit of Garza implicated the City of San Antonio or should have made the City of San Antonio subjectively aware of its potential fault because the undisputed evidence conclusively establishes the pursuit of Garza had ceased.Next, the San Antonio Police Report written by Officer Carmona and Officer Zachary's statement conclusively establish that Garza was already in flight from the original scene of an alleged armed burglary when Officer Carmona and Officer Zachary began pursuit. This evidence is undisputed. Because Garza was already in flight when the police pursuit began, his flight or evasion of police pursuit cannot raise a fact issue whether the City of San Antonio was subjectively aware of its potential fault. This undisputed evidence establishes conclusively that the City of San Antonio did not cause Garza to flee.Finally, Officer Reygadas's report establishes conclusively that he made the order to terminate pursuit based upon safety concerns when Garza entered the exit ramp. This evidence is undisputed and provides indication of Officer Reygadas's perception of the events as they were unfolding and his perception of the potential implication of the officers' action. Officer Reygadas exercised this judgment by commanding all police officers to cease pursuit. Because the police officers acted according to Officer Reygadas's command to terminate the pursuit, the police officers' actions in stopping the pursuit, and instead, taking the turnaround, exemplifies that the police officers acted prudently to ensure the safety of the public and themselves. Thus, the undisputed evidence conclusively establishes the police officers acted with prudence based upon safety concerns, and therefore, do not raise a fact issue whether the City of San Antonio was subjectively aware of its potential fault.For these reasons, the statement in the Peace Officer's Report that the cause of the accident was Garza's "Fleeing or Evading Police" is not sufficient to raise a fact issue whether the City of San Antonio was subjectively aware of any alleged fault in causing or contributing to the accident. In fact, these statements and the Reports conclusively establish the City of San Antonio was not subjectively aware of its potential fault.[1]Aside from this conclusive undisputed evidence, this court cannot conclude a fact issue exists with regard to subjective awareness based upon police pursuit, alone. See Muniz v. Cameron Cnty., 2012 WL 1656326, at *6. Thus, as a matter of law, the majority opinion cannot hold that Garza's flight or evasion of police pursuit was sufficient to raise a fact issue of the City of San Antonio's subjective awareness. See id.Finally, the majority's conclusion in this case, that an indication of flight or evasion of police is sufficient to implicate fault because "[i]t stands to reason that there can be no fleeing or evading without pursuit or chase by the police," results in a bright-line determination that subjective awareness must be implied any time there is a high speed pursuit that results in an accident. This holding promotes a result that is outside the guidelines provided in the Cathey, Simons, and Carbajal precedential authority because it allows a presumptive conclusion with regard to subjective awareness and goes against the purpose of the statutory notice requirement. See Carbajal, 324 S.W.3d at 539; Simons, 140 S.W.3d at 345; Cathey, 900 S.W.2d at 341.CONCLUSION
In this case, the record shows conclusively that the City of San Antonio was not subjectively aware of its alleged fault in causing or contributing to the accident from which Ms. Tenorio derives her claims. Therefore, as a matter of law, Ms. Tenorio did not comply with the prerequisite notice requirements of Section 101.101 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101 (West 2011). Failure to comply with the notice requirements deprives the trial court of jurisdiction. TEX. GOV'T CODE ANN. § 311.034 (West 2013). Following this analysis under the undisputed facts presented, I would reverse the trial court's order denying the City of San Antonio's plea to the jurisdiction and render judgment dismissing the cause for want of subject matter jurisdiction.[1] Article XII, Section 150 of the City of San Antonio Charter requires that notice of an injury be provided to the city manager or city clerk in writing within ninety days after the injury has been sustained.[2] It was later determined that the Texas Department of Transportation, not the City, was at fault in failing to erect or maintain the barricades. Carbajal, 324 S.W.3d at 539.[1] While determination of the City of San Antonio's subjective awareness is intertwined with the facts pertaining to the substantive merits of the liability question, this finding does not affirmatively determine the issue of the City of San Antonio's liability or potential negligence. This court's review is limited to determination of the City of San Antonio's subjective awareness. Therefore, this court may review these facts and evidence for this limited purpose and in this limited context, without deciding the substantive merits of the ultimate litigation. See Miranda,133 S.W.3d at 227-28; Estate of Arancibia, 324 S.W.3d at 549.
900 S.W.2d 339 (1995) George CATHEY, M.D. and Wood County Central Hospital, Petitioners v. Jerry BOOTH and Glenda Booth, Respondents.
No. 95-0398. June 22, 1995. ON APPLICATION FOR WRIT OF ERROR TO THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS
PER CURIAM.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. TEX.CIV.PRAC. & REM.CODE § 101.101. In this cause, we consider whether a hospital may receive actual notice of a claim against it from its own medical records. We conclude that, for a hospital to have actual notice, it must have knowledge of (1) a death or injury; (2) its alleged fault producing or contributing to the death or injury; and (3) the identity of the parties involved. Because the records at issue in this case do not convey to the hospital its possible culpability, we reverse the judgment of the court of appeals as to any remaining claims against Wood County Central Hospital and render judgment that the Booths take nothing from the Hospital.Glenda Booth was admitted to Wood County Central Hospital with labor pains on August 1, 1990, following a course of prenatal care by Dr. George Cathey. Glenda and Jerry Booth's child was delivered stillborn on that day.The Booths sued Dr. Cathey and the Hospital, alleging that their negligence resulted in the stillbirth of the Booths' child and in physical pain and mental anguish to the Booths. The Booths allege that the doctor 341*341 and the Hospital were negligent in failing to diagnose and treat Glenda Booth's condition as a high risk pregnancy and in failing to diagnose and treat Glenda Booth for gestational diabetes.The trial court granted summary judgment in favor of Dr. Cathey and the Hospital on all claims. The court of appeals affirmed as to the Booths' claims for the mental anguish that they suffered as a result of the negligent treatment of the fetus. Otherwise, the court of appeals reversed and remanded for a new trial. 893 S.W.2d 715, 720.To prevail on a motion for summary judgment, a movant must establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). A defendant who conclusively negates at least one of the essential elements of each of the plaintiff's causes of action or who conclusively establishes all of the elements of an affirmative defense is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). In reviewing a summary judgment, we must accept as true evidence in favor of the nonmovant, indulging every reasonable inference and resolving all doubts in the nonmovant's favor. Nixon v. Mr. Property Management Co.,690 S.W.2d 546, 548-49 (Tex.1985).Section 101.101(c) of the Tort Claims Act provides that the formal notice requirements of section 101.101(a) "do 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." TEX.CIV.PRAC. & REM.CODE § 101.101(c). It is undisputed that the Booths failed to provide the Hospital with formal, written notice of their claims against it pursuant to section 101.101(a). The Booths assert, however, that the Hospital received actual notice of their claims. The Booths argue that section 101.101(c) requires only that a governmental unit have knowledge that a death, an injury, or property damage has occurred. We disagree.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. See City of Houston v. Torres, 621 S.W.2d 588, 591 (Tex.1981). The interpretation of section 101.101(c) urged by the Booths would eviscerate the purpose of the statute, as it would impute actual notice to a hospital from the knowledge that a patient received treatment at its facility or died after receiving treatment. For a hospital, such an interpretation would be the equivalent of having no notice requirement at all because the hospital would be required to investigate the standard of care provided to each and every patient that received treatment.We hold that 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. Our holding preserves the purpose of the notice statute, and is consistent with the holdings of the majority of the courts of appeals. See Parrish v. Brooks, 856 S.W.2d 522, 525 (Tex.App.—Texarkana 1993, writ denied); Bourne v. Nueces County Hosp. Dist., 749 S.W.2d 630, 632-33 (Tex.App.—Corpus Christi 1988, writ denied); Tarrant County Hosp. Dist. v. Ray, 712 S.W.2d 271, 274 (Tex.App.—Fort Worth 1986, writ ref'd n.r.e.). To the extent that Texas Dep't of Mental Health & Mental Retardation v. Petty, 817 S.W.2d 707, 717 (Tex.App.—Austin 1991), aff'd on other grounds, 848 S.W.2d 680 (Tex.1992), is inconsistent with this opinion, we disapprove it.As summary judgment proof, Wood County Central Hospital presented the affidavit of its administrator, Marion Stanberry, who stated that prior to its receipt of a letter dated July 7, 1992, the Hospital had no knowledge of any alleged injuries of Glenda or Jerry Booth or of any alleged fault of the Hospital with respect to such injuries.The summary judgment evidence provided by the Booths does not raise a fact issue that Wood County Central Hospital had actual notice of any alleged culpability on its part producing or contributing to any injury to Glenda or Jerry Booth. The only evidence 342*342 presented by the Booths concerning the Hospital's knowledge of its culpability is an affidavit from Dean Cromartie, an obstetrician who reviewed Glenda Booth's medical records and determined that Dr. Cathey and the Hospital were negligent in their treatment of Glenda Booth. Dr. Cromartie explained that the Cesarean section was not performed on Glenda Booth until more than half an hour after the time that it was called for. Even if the Hospital was aware of the information in its medical records relied upon by Dr. Cromartie in forming his opinion, we hold that, as a matter of law, this information failed to adequately convey to the Hospital its possible culpability for mental and physical injuries to Glenda and Jerry Booth. Cf. Dinh v. Harris County Hosp. Dist., 896 S.W.2d 248, 252-53 (Tex.App.—Houston [1st Dist.] 1995, writ dism'd w.o.j.).Wood County Central Hospital and Dr. Cathey also argue that the judgment of the court of appeals should be reversed because the Booths failed to plead a cause of action for damages independent of the stillbirth. The Booths' pleadings contain allegations that Dr. Cathey and the Hospital were negligent in their treatment of Glenda Booth and allegations that such treatment resulted in physical and mental injuries to Glenda and Jerry Booth. A mother "may recover mental anguish damages suffered as a result of her injury which was proximately caused by [a doctor's or a hospital's negligence] and which includes the loss of her fetus." Krishnan v. Sepulveda, ___ S.W.2d ___, ___ [1995 WL 358844] (Tex.1995).[1] However, a father may not recover mental anguish damages from either the treating physician or the hospital because neither owes a duty to him. Id. at ___.Accordingly, a majority of the Court grants the applications for writ of error, and, without hearing oral argument, affirms in part and reverses in part the judgment of the court of appeals. Tex.R.App.P. 170. The Court renders judgment that the Booths take nothing from Wood County Central Hospital and that Jerry Booth take nothing from Dr. George Cathey. With regard to the claims asserted by Glenda Booth against Dr. George Cathey, the Court affirms the judgment of the court of appeals, which remanded those claims for trial.[1] Neither parent, however, may recover damages for the loss of society, companionship, and affection suffered as a result of the loss of a fetus. Krishnan, ___ S.W.2d at ___.
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