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City of Killeen v. Worsdale

Court of Appeals of Texas, Third District, Austin

February 28, 2018

City of Killeen, Texas, Appellant
v.
Joy Worsdale, Individually and as the Personal Representative of the Estate of Scott Worsdale, Deceased; James Worsdale; Betty Worsdale; Manuel Martinez; Ingeborg Martinez; Russell King; Cody King; Tiffany King, Individually and as the Personal Representative of the Estate of Heike King, Deceased; and Laura Warmbier as Next Friend of Sommer Warmbier, Appellees

         FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT NO. 289, 598-C, HONORABLE PHILLIP O. VICK, JUDGE PRESIDING

          Before Justices Puryear, Pemberton, and Bourland Justice Pemberton Not Participating.

          MEMORANDUM OPINION

          David Puryear, Justice.

         In this interlocutory appeal, the City of Killeen appeals the trial court's denial of its plea to the jurisdiction, contending that the City did not have "actual notice" of appellees' wrongful-death claims, which is required to waive the City's governmental immunity under the Texas Tort Claims Act (TTCA). See Tex. Civ. Prac. & Rem. Code § 101.101(c). For the following reasons, we reverse the trial court's order and render judgment granting the City's plea to the jurisdiction, dismissing appellees' claims against the City for want of jurisdiction.

         BACKGROUND[1]

         Appellees' lawsuit arose out of a motorcycle accident involving driver Scott Worsdale and passenger Heike King. Their petition alleged that on June 7, 2015, Worsdale's motorcycle was traveling westbound on Reese Creek Road in Killeen when it collided with a "large dirt mound obstructing the full width" of the roadway; the mound was "not marked or indicated by any traffic-control device, barricades, or other safety features." Both Worsdale and King were seriously injured in the accident and later died from their injuries.[2]

         The Killeen Police Department (KPD) arrived on the scene shortly after the accident and began an investigation. KPD Officer Bradley Blenden's incident report outlined observations he made at the scene the night of the accident as well as observations and conversations he had with employees from other City departments, including a Deputy City Attorney, in the days following the accident. As noted in his report, some of those conversations concerned who owned the road and was responsible for its maintenance. However, the report did not make any conclusions about fault for the accident. Officer Blenden supplemented his report on June 26, 2016, noting that the case "will be closed" due to the death of Worsdale, "the suspect in the case."[3]

         Appellees' petition alleged that the dirt mound constituted a special defect on the City's property-a dangerous condition about which the City knew or should have known-and that the City had a duty to make the premises safe by eliminating the risk of harm or warning of the dangerous condition, which it failed to do. See Tex. Civ. Prac. & Rem. Code § 101.022(b) (noting that governmental unit has duty to warn of special defects such as excavations or obstructions on roads); see also id. § 101.025 (waiving governmental immunity for claims under TTCA). The City's plea to the jurisdiction asserted that (1) appellees did not provide the City with the required, written statutory notice of their claims within six months of the accident and (2) the City did not have "actual notice" of appellees' claims within that same period. See id. § 101.101(a), (c). Appellees attached evidence to their response to the City's plea to the jurisdiction-including excerpts from the deposition testimony of Officer Blenden and his incident report-and, after a hearing, the trial court denied the plea.

         DISCUSSION

         A governmental unit, such as a city, is immune from suit and liability unless the legislature has waived immunity. See Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). A plaintiff has the burden to affirmatively demonstrate a valid legislative waiver of immunity. See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To determine if the plaintiff has met that burden, the courts "consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties." Texas Nat. Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001). "A plaintiff bears the burden of alleging sufficient facts and to come forward with jurisdictional evidence to demonstrate that the trial court has subject matter jurisdiction over its claims." City of El Paso v. Viel, 523 S.W.3d 876, 883 (Tex. App.-El Paso 2017, no pet.). "Subject-matter jurisdiction is a question of law; therefore, we review a trial court's ruling on a plea to the jurisdiction de novo." City of Austin v. Frame, No. 03-15-00292-CV, 2017 WL 1832485, at *2 (Tex. App.-Austin May 5, 2017, pet. filed) (mem. op.) (citing Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).

         The notice requirements in the TTCA are jurisdictional. See Tex. Gov't Code § 311.034 ("Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity."); City of Dallas v. Carbajal, 324 S.W.3d 537, 537-38 (Tex. 2010). Regarding pre-suit notice, section 101.101 of the TTCA provides in relevant 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 ...

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