Arlean Green v. City of Houston

Opinion

Opinion issued April 30, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00808-CV ——————————— ARLEAN GREEN, Appellant V. CITY OF HOUSTON, Appellee

On Appeal from the 269th District Court Harris County, Texas Trial Court Cause No. 2014-13489

MEMORANDUM OPINION

This case arises from a trip and fall accident at an airport. Arlean Green

sues the City of Houston, claiming that the City’s negligence caused her knee

injury. The City filed a plea to the jurisdiction and moved to dismiss the case, responding that Green had not met her burden to show that the City had received

timely notice of her claim. The trial court granted the City’s plea. On appeal,

Green contends that the City received actual notice of her claim through its agent,

the Transportation Security Administration (TSA). Finding no error, we affirm.

Background

Green alleges that she tripped over an exposed metal strip and fell at the

George Bush Intercontinental Airport in May 2012. She injured her knee and

received medical treatment. Green spoke with a TSA agent immediately after she

fell. In July 2012, Green also notified the TSA that she had slipped on a steel strip

and fallen in the airport. In a Freedom of Information Act (FOIA) request, Green

requested that the TSA produce any statements submitted by TSA employees about

the incident. Her traveling companion, who witnessed Green’s fall, wrote a letter

to the TSA manager of the airport, stating that Green had tripped on a steel strip in

the airport, injuring her knee. Green does not claim that she communicated with

any City of Houston employees within 90 days of the incident.

Green sued the City and United Airlines, Inc. The trial court granted the

City’s plea to the jurisdiction and dismissed the suit against the City. Green then

moved for non-suit of her claim against United Airlines.

2 Discussion

Standard of Review and Applicable Law

Governmental immunity from suit defeats a trial court’s subject matter

jurisdiction; thus, a city may raise immunity from suit in a plea to the jurisdiction.

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004).

Whether a court has subject matter jurisdiction presents a question of law. Id. at

226. In reviewing a trial court’s jurisdictional ruling, we construe the pleadings in

the plaintiff’s favor. Id.

The Texas Tort Claims Act (TTCA) provides a limited waiver of

governmental immunity. Id. at 224 (citing TEX. CIV. PRAC. & REM. CODE ANN.

§§ 101.001–.109). A plaintiff bears the burden to allege facts affirmatively

demonstrating the trial court’s jurisdiction to hear the case. Dallas Area Rapid

Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). We consider only the

plaintiff’s pleadings and evidence relevant to the jurisdictional inquiry. Id. (citing

Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.

2001)).

Notice

Green bears the burden to allege facts that affirmatively demonstrate the trial

court’s jurisdiction, including notice. See TEX. GOV’T CODE ANN. § 311.034 (West

2013); Whitley, 104 S.W.3d at 542. The Texas Government Code provides,

3 “Statutory prerequisites to a suit, including the provision of notice, are

jurisdictional requirements in all suits against a governmental entity.” TEX. GOV’T

CODE ANN. § 311.034. Relevant to this appeal, the City of Houston requires notice

of a personal injury claim within 90 days of the injury. CITY OF HOUSTON

CHARTER art. IX, § 11; see TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(b) (“A

city’s charter and ordinance provisions requiring notice within a charter period

permitted by law are ratified and approved.”).

In addition to formal notice of the injury and claim, a claimant may rely on

actual notice to meet this jurisdictional requirement “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(c). Actual notice “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.” Tex. Dep’t of Crim. Justice v. Simons, 140 S.W.3d 338, 344

(Tex. 2004) (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per

curiam)). Actual notice is a fact question when the evidence is disputed, but can be

determined as a matter of law if no disputed fact issue exists. Simons, 140 S.W.3d

at 348; Harris Cnty. v. Luna–Prudencio, 294 S.W.3d 690, 697 (Tex. App.—

Houston [1st Dist.] 2009, no pet.). Actual notice requires more than knowledge of

4 the accident or injury; in addition, a governmental unit must have subjective

awareness that its fault produced or contributed to the claimed injury. Univ. of

Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia ex rel. Vasquez–Arancibia, 324

S.W.3d 544, 548–49 (Tex. 2010).

When an agent or representative of a governmental unit receives notice of an

incident and has a duty to gather facts and report it, actual notice may be imputed

to the governmental unit. Guadalupe Blanco River Auth. v. Schneider, 392 S.W.3d

321, 325 (Tex. App.—San Antonio 2012, no pet.) (citing Univ. of Tex. Health Sci.

Ctr. at San Antonio v. Stevens, 330 S.W.3d 335, 339 (Tex. App.—San Antonio

2010, no pet.)); see Dinh v. Harris Cnty. Hosp. Dist., 896 S.W.2d 248, 253 (Tex.

App.—Houston [1st Dist.] 1995, writ dism’d w.o.j.) (“Actual notice . . . may be

imputed to the government by an agent or representative who has a duty to gather

facts and investigate.”).

Analysis

Green concedes that she did not directly notify the City of her claim under

section 101.101(a). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a). She

instead contends that the City had actual notice of her fall within 90 days of the

incident because she promptly notified TSA agents on duty and followed up with

the TSA in email exchanges. She further contends that the TSA employees on

duty in the airport were the agents or representatives of the City. The City

5 responds that notice to a federal governmental unit cannot be imputed to it, and

proffered evidence that the TSA is not an agency of the City.

We agree with the City’s position and with the trial court. Absent evidence

of an affiliation, notice to one governmental unit does not impute notice to another.

City of Houston v. McGowen, No. 14-13-00415-CV, 2014 WL 2039856, at *6

(Tex. App.—Houston [14th Dist.] May 15, 2014, no pet.) (mem. op.) (holding that

notice to Texas Department of Transportation not imputed to City of Houston);

Reese v. Tex. State Dep’t of Hwys. & Pub. Transp., 831 S.W.2d 529, 530 (Tex.

App.—Tyler 1992, writ denied) (holding that notice to Texas Department of Public

Safety not imputed to Texas State Department of Highways and Public

Transportation). Because Green did not adduce evidence in response to the plea

that the TSA is an agent or representative of the City, she did not demonstrate

actual notice that can be imputed to the City. See Arancibia, 324 S.W.3d at 548–

49; Simons, 140 S.W.3d at 344, 348; Whitley, 104 S.W.3d at 542; Schneider, 392

S.W.3d at 325. Accordingly, the trial court properly granted the plea.

6 Conclusion

We hold that Green did not adduce evidence that the City was notified of her

claim under the TTCA and thus failed to meet the jurisdictional prerequisite for a

waiver of governmental immunity. We therefore affirm the trial court’s dismissal

order.

Jane Bland Justice

Panel consists of Justices Keyes, Bland, and Massengale.