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City of Elpaso v. Lopez

Court of Appeals of Texas, Eighth District, El Paso

December 16, 2019


          Appeal from the County Court at Law #3 of El Paso County, Texas (TC# 2017DCV0065)

          Before Alley, C.J., Rodriguez, and Palafox, JJ.



         This is an interlocutory appeal from the denial of a plea to the jurisdiction in a suit brought against the City of El Paso for the wrongful death of Albert Adam Lopez. In two issues, the City argues that Appellees failed to invoke the governmental immunity waiver under the Texas Tort Claims Act because Appellees (1) failed to comply with the jurisdictional notice provisions contained in Section 101.101 of the Act; and (2) failed to state a claim under the special defect provision contained in Section 101.022(b) of the Act.

         Because we find that the undisputed jurisdictional evidence in this case sufficiently establishes that the City had actual notice of its alleged fault contributing to Mr. Lopez's death, as well as the existence of a special defect for which the Act's immunity waiver is invoked, we affirm.


         On June 14, 2015, at approximately 9:24 p.m., Albert Adam Lopez was traveling east bound on his motorcycle at the 1700 block of San Antonio Avenue in El Paso, Texas. At that time, San Antonio Avenue ended abruptly at a concrete irrigation canal and a concrete barrier. There were neither road signs nor any other type of warnings signaling motorists that the road ended at the canal and the road had no lighting. After Mr. Lopez lost control of his motorcycle, he collided with a concrete barrier, and was ejected from the motorcycle. The motorcycle was split in two and landed in the canal. Mr. Lopez's body landed on a set of railroad tracks adjacent to the canal. Mr. Lopez later died from the injuries sustained in the impact. An autopsy revealed Mr. Lopez's blood alcohol level at the time of his death was 0.105.

         On the night of the collision, Albert J. Gandara, a police officer and investigator with the El Paso Police Department was dispatched to the scene. Officer Gandara conducted an accident investigation and wrote down his findings in a "Texas Peace Officer's Crash Report" in which he wrote that "the driver . . . failed to stop for the end of the street or roadway and crashed his bike in to the canal." Following Mr. Lopez's death, the case was assigned to the Special Traffic Investigation Unit of the El Paso Police Department for a "follow up investigation." On June 19, 2015, Adrian Armendariz, a police officer and investigator with the STI Unit took a "confidential" statement from a witness to the collision named Genesis Sanchez, who had been living near the scene of the collision since January. Ms. Sanchez reported that "there are a lot of cars that crash into the canal" because "[t]here are no warning signs to let you know that the street ends so when people come out the bars they wind up crashing at the canal."

         On July 8, 2015, Officer Gandara took a "confidential" written statement from Berkley Hatch, a police officer with the El Paso Department, who was also dispatched to the scene on the night of the collision. According to Officer Hatch's confidential statement, Mr. Lopez's collision was the third he had seen in this area in four years. He also observed that at the time of Mr. Lopez's collision, "there were no road signs posted or any kind of warning of the dead end."

         On August 20, 2015, Officer Armendariz, wrote a "confidential" investigation report in which he concluded that the "lack of signs and illumination" were factors, among others, that caused the collision. According to Appellees, after these findings were made, the City "promptly barricaded the dead end road in question and placed warning signs and installed lighting." The City received formal written notice of the Appellees' claim on December 15, 2015. These facts are undisputed.


         Under the common law, municipalities like the City of El Paso are immune from suit and liability for damages arising from the performance of governmental functions absent a clear and unambiguous legislative waiver of immunity. Wasson Interests, Ltd. v. City of Jacksonville, 559 S.W.3d 142, 146-47 (Tex. 2018). The Texas Tort Claims Act (the "Act") waives immunity for certain tort claims, including premises defects, "to the extent of liability" under the Act. Tex.Civ.Prac.&Rem.Code Ann. §§ 101.022, .025; County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002)(quoting Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000), which interprets Section 101.021 of the Act).

         I. The Texas Tort Claims Act's Notice Requirement

         The Act requires that a governmental unit receive notice of a claim 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), or within a timeframe set out in a city's charter or ordinance, Tex.Civ.Prac.&Rem.Code Ann. § 101.101(b), unless 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).

         Compliance with the Act's notice provision is a jurisdictional pre-requisite to suit. See Tex.Gov't Code Ann. § 311.034 ("Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity."); see also, City of Dallas v. Carbajal, 324 S.W.3d 537, 537-538 (Tex. 2010)("The provision of notice [under Section 101.101] is a jurisdictional requirement in all suits against a governmental unit."). The City contends that Appellees failed to comply with the Act's notice requirement and that, consequently, it remains immune from suit and liability. Appellees concede they failed to provide the City with timely written notice of their claim under Sections 101.101(a) and (b), but they contend the City had actual notice of its fault, which renders formal notice of their claim unnecessary. See Tex.Civ.Prac.&Rem.Code Ann. § 101.101(c).

         A. ...

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