Court of Appeals of Texas, Eighth District, El Paso
from the County Court at Law #3 of El Paso County, Texas (TC#
Alley, C.J., Rodriguez, and Palafox, JJ.
T. RODRIGUEZ, JUSTICE.
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.
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.
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.
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."
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."
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.
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).
The Texas Tort Claims Act's Notice
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).
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).