Reverse and Dismiss; Opinion Filed November 23, 2020
In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00103-CV
CITY OF DALLAS, Appellant V. MICHELLE MAZZARO, Appellee
On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-00842
MEMORANDUM OPINION Before Justices Whitehill, Pedersen, III, and Reichek Opinion by Justice Pedersen, III The City of Dallas appeals the trial court’s order denying its plea to the
jurisdiction in Michelle Mazzaro’s suit to recover damages for injuries suffered
when she fell while walking on City-owned property.1 The City contends that it is
immune from Mazzaro’s suit because Mazzaro did not timely serve it with the
statutorily required notice of her claims and Mazzaro did not prove that the City had
actual notice of her claims. The City also contends there is no waiver of immunity
for Mazzaro’s premise liability and general negligence claims. We reverse the trial
1 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (authorizing appeal of interlocutory order denying governmental unit’s plea to the jurisdiction). court’s order and render judgment dismissing Mazzaro’s suit for lack of subject-
matter jurisdiction.
Background
According to her petition, on January 16, 2017, Mazzaro was walking along
a pathway at the Grassy Knoll in Dealey Plaza when she tripped and fell, injuring
her ankle. Dallas Fire & Rescue paramedics responded to a 9-1-1 call and transported
Mazzaro to the hospital.
On July 14, 2017, Mazzaro sent the City a notice of claim letter apprising it
of her negligence claims against the City. The letter stated that Mazzaro’s fall was
caused by the defective condition of the Monument steps.2 On January 17, 2019,
Mazzaro filed suit against the City alleging that an uneven pathway—not defective
steps—caused her fall and injuries. Mazzaro alleged that the City permitted a
dangerous condition to exist at its premises—the uneven pathway—that posed an
unreasonable risk of harm and proximately caused her injuries. She alleged that the
City knew, or reasonably should have known, about this dangerous condition. She
alleged that the City had duties to inspect and to warn or cure, but it breached those
duties by choosing not to repair the unsafe condition of the uneven pathway on its
premises. She also urged that the City was negligent in hiring, training, and
2 The letter asserted a variety of deficiencies with the steps: improper riser heights and tread widths; improper nosings, handrails, gripping surfaces, and lighting; no proper warning signs; and unsafe condition. –2– supervising employees who caused or failed to repair the unreasonably dangerous
condition.
The City filed a plea to the jurisdiction. The City asserted it was immune from
suit because Mazzaro failed to provide the City with written notice of her claims
within six months of the date of the incident and such failure deprived the trial court
of subject-matter jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a).
The City also asserted it did not have actual notice of Mazzaro’s injury claims. With
respect to Mazzaro’s premise liability claims, the City urged there was no waiver of
immunity under the Texas Tort Claims Act (“TTCA”). The City explained that
Mazzaro had not, and could not, establish a waiver of immunity because the City did
not have prior actual knowledge of the allegedly dangerous condition at the location
of Mazzaro’s fall. Finally, the City argued that Mazzaro was limited to a premise
defect theory of recovery under TTCA and could not show that her claims for
negligence establish a waiver of immunity under TTCA.
In response, Mazzaro argued that the City had timely, actual notice of her
claims. See CIV. PRAC. & REM. § 101.101(c) (stating that TTCA’s notice
requirements do not apply if the governmental entity has actual notice that claimant
has received some injury). She asserted her statement to paramedics that her injury
was caused by a drop off between the bottom step of the Monument and the grass
constituted actual notice to the City. She further asserted that the City is not entitled
to immunity because the City (i) knew it had a duty to maintain level pathways for
–3– its park patrons, (ii) undertook the maintenance of such pathways, thus exhibiting its
knowledge of the risk of uneven pathways, and (iii) failed to properly maintain the
pathways to keep them level. She also urged that the City knew or should have
known about the erosion that caused the drop off from the bottom of the steps to the
ground because such erosion takes place over time. Mazzaro also argued that it could
be inferred that the City had actual knowledge of this defect.
After two hearings, the trial court signed an order denying the City’s plea to
the jurisdiction. The City now appeals that order.
Discussion
In its first issue, the City asserts generally that the trial court erred in denying
the City’s plea to the jurisdiction. In its second, third, and fourth issues, the City
presents three specific arguments to support its assertion that the trial court’s
decision was erroneous.
A. Plea to the Jurisdiction
A plea to the jurisdiction challenges a trial court’s subject-matter jurisdiction.
Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam).
Whether a court has subject matter jurisdiction is a question of law that we review
de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004). If the evidence creates a fact question regarding jurisdiction, the trial court
cannot grant the plea, and the fact question will be resolved by the factfinder. Id. at
–4– 227–28. However, if the relevant evidence is undisputed or fails to raise a fact issue,
the trial court rules on the plea as a matter of law. Id. at 228.
Under the common law, municipalities like the City of Dallas are immune
from suit and liability for money damages unless the legislature has clearly and
unambiguously waived immunity. Worsdale v. City of Killeen, 578 S.W.3d 57, 62
(Tex. 2019). Absent a valid statutory waiver of immunity, a trial court may not
assume subject-matter jurisdiction over a suit against a governmental unit. City of
San Antonio v. Tenorio, 543 S.W.3d 772, 775 (Tex. 2018) (citing Ryder Integrated
Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 926–27 (Tex. 2015)).
B. The Texas Tort Claims Act
The TTCA waives the City’s governmental immunity in certain limited
circumstances, including for personal injury caused by a condition or use of personal
or real property. CIV. PRAC. & REM. § 101.021(2) (providing for waiver of immunity
for personal injury or death caused by condition or use of tangible personal or real
property); see Tenorio, 543 S.W.3d at 775. However, this limited waiver is available
only if the claimant complies with statutory notice requirements. Worsdale, 578
S.W.3d at 62; see CIV. PRAC. & REM. § 101.101; TEX. GOV’T CODE ANN. § 311.034
(statutory notice provisions are jurisdictional requirements in all suits against
governmental entities). The primary purpose of the notice requirement is to ensure
prompt reporting of claims to enable governmental units to gather information
necessary to guard against unfounded claims, settle claims, and prepare for trial.
–5– Worsdale, 578 S.W.3d at 63 (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.
1995) (per curiam)). In Worsdale, the Texas Supreme Court discussed other benefits
of the prompt notice requirement, noting “[p]romptly connecting the governmental
unit’s conduct to an injury allows for swift abatement of dangerous conditions or
practices.” Id. at 64.
The TTCA requires that either formal or actual notice precede the filing of
any lawsuit against a governmental entity. CIV. PRAC. & REM. § 101.101; see
Worsdale, 578 S.W.3d at 62. Section 101.101(a) provides that 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.” CIV. PRAC.
& REM. § 101.101(a). Such formal notice, which must be in writing, must reasonably
describe (1) the damage or injury claimed, (2) the time and place of the incident, and
(3) the incident. Id. The written notice requirements set forth in subsection (a) do not
apply if the governmental unit has actual notice that the claimant has received some
injury. Id. § 101.101(c).
1. Written Notice of Claims
The City contends there is no subject-matter jurisdiction for Mazzaro’s
personal injury claims under the TTCA because the City did not receive written
notice of her claims within six months and because the City did not have actual
notice of her injuries. We first address whether Mazzaro provided the City with
timely written notice as required by section 101.101(a).
–6– Mazzaro’s fall occurred on January 16, 2017; thus, Mazzaro was required to
provide written notice to the City by July 16, 2017. See CIV. PRAC. & REM. §
101.101(a). The record includes a copy of a letter from Mazzaro’s attorney to the
City, dated July 14, 2017, notifying the City of Mazzaro’s intention to sue the City
for injuries sustained due to the alleged defective condition of the steps at Dealey
Plaza. The letter is addressed to the Dallas City Secretary and the Dallas City
Attorney; copies were sent via regular mail and certified mail, return receipt
requested. Also included in the record is a copy of an envelope, postmarked July 14,
2017, which designates Mazzaro’s attorney as the sender, and the City as the
recipient. Assuming the letter was sent on July 14, 2017, Mazzaro did not provide
any evidence that the City actually received the letter on or before July 16, 2017.
Both the letter and the envelope were stamped “received” by the “Dallas City
Attorneys” on July 18, 2017.
The City provided an affidavit from Brent Cox, the Claims Manager for the
City’s Office of Risk Management.3 Cox stated that his duties include overseeing
notices of claims filed against the City by persons claiming injuries. He stated that
he conducted a diligent search of the City’s records for the period of January 16,
2017, through July 16, 2017. His search revealed that the City did not receive any
notice of an injury claim from or on behalf of Mazzaro within that six-month period.
3 Cox’s affidavit was attached to the City’s Plea as Exhibit 2.
–7– When Cox expanded his search to include dates after July 16, 2017, he determined
that the City received the written notice of Mazzaro’s claim against the City on July
18, 2017.
Cox’s testimony was corroborated by the affidavit of Molly Parks Ward, an
attorney for the City, who described researching the certified mail tracking
information indicated on the letter.4 Her research on usps.com confirmed that the
City received the Mazzaro’s notice-of-claims letter on July 18, 2017—six months
and two days after Mazzaro’s fall.
“According to the plain language of the TTCA, it is the date that the City
receives notice—not when the claimant sends notice—that is controlling.” Adams v.
City of Dallas, No. 05-14-01143-CV, 2015 WL 7280893, at *2 (Tex. App.—Dallas
Nov. 18, 2015, no pet.) (mem. op.); see CIV. PRAC. & REM. § 101.101(a). At the
December 9, 2019 hearing on the City’s plea to the jurisdiction, Mazzaro argued that
the City should have received her notice-of-claims letter before July 16, 2017,
because it was mailed on July 14, 2017. However, she did not present any evidence
that the City had actually received the notice on or before July 16, 2017. Thus Cox’s
affidavit that formal notice was received two days after the statutory deadline was
undisputed. We conclude the evidence establishes that Mazzaro did not meet the
TTCA’s formal written notice requirement under section 101.101(a).
4 Ward’s affidavit was attached to the City’s Plea as Exhibit 4.
–8– 2. Actual Notice of Claims
We next consider whether there is any evidence that the City had actual notice
of Mazzaro’s claims. CIV. PRAC. & REM. § 101.101(c) (written notice requirement
in subsection (a) does not apply if City had actual notice). For a governmental unit
to have actual notice, it must have knowledge of (1) a death, injury, or property
damage; (2) the governmental unit’s alleged fault that produced or contributed to the
death, injury, or property damage; and (3) the identity of the parties involved.
Worsdale, 578 S.W.3d at 63 (citing Cathey, 900 S.W.2d at 341). Knowledge that an
injury has occurred, standing alone, is not sufficient to put a governmental entity on
actual notice as required under the TTCA. Tenorio, 543 S.W.3d at 776
(governmental entity must have same knowledge it would have received under
written notice provision). Actual notice under section 101.101(c) requires evidence
that the government had knowledge of its alleged fault in causing or contributing to
the claimant’s injury. See Worsdale, 578 SW.3d at 65 (“[T]here must be subjective
awareness connecting alleged governmental conduct to causation of an alleged
injury to person or property in the manner ultimately asserted.”). “The issue is not
whether the City should have made the connection between injury and responsibility
as alleged, but whether the City made the connection or had knowledge that the
connection had been made.” Id. at 66 (emphasis in original).
The parties do not dispute that the City owns Dealey Plaza and that the City’s
paramedics responded to the 9-1-1 call regarding Mazzaro’s injury. However, the
–9– City asserts that there is no evidence that the City had subjective awareness of its
alleged fault in causing or contributing to the injuries alleged by Mazzaro. In an
affidavit attached to her second amended response to the City’s plea, Mazzaro stated:
“When the EMS arrived, I talked with the paramedics and told them that I twisted
my ankle because of a huge drop off from the bottom step of the Monument to the
grass.” In addition, Mazzaro asserted that the City’s own exhibits established that
the City had actual knowledge that she was injured at the Grassy Knoll at Dealey
Plaza and had a possible broken ankle.5
Exhibit 5 is an affidavit from Daniel Salazar, custodian of records for Dallas
Fire & Rescue, Communications Division, for the City of Dallas, authenticating an
attached incident detail report, dated January 16, 2017. The report details dispatching
Dallas Fire & Rescue to the “Grassy Knoll of the Kennedy Site” to pick up a female
with a possible broken ankle for transport to Methodist Hospital. Exhibit 6 is an
affidavit from Robert Holloway, custodian of records for Dallas Fire & Rescue
Division of the City of Dallas, authenticating an attached Prehospital Care Report
Summary. The report, dated January 16, 2017, described Mazzaro’s condition and
her ankle injury. According to the report, Mazzaro told the paramedics that she lost
her balance and twisted her ankle.
5 Exhibits 5 and 6 to the City’s plea identified the date, time, and location of the incident.
–10– We agree with the City that Mazzaro’s evidence falls short under the second
prong of the actual notice test, which requires that the City have “subjective
awareness” of its “alleged fault producing or contributing to” the injury. See
Worsdale, 578 S.W.3d at 59, 63. There is nothing in the paramedics’ reports to
suggest that the City was at fault for causing or contributing to Mazzaro’s injury. In
the Prehospital Care Report Summary, the paramedics noted that the patient “states
she was walking when she lost her balance and twisted her ankle.” The report does
not mention a drop off or defective condition on the property. And there is no
mention of an uneven pathway, as alleged in Mazzaro’s petition.
The City contends that even assuming Mazzaro told the paramedics that her
fall was caused by a drop off or uneven pathway, her report to the paramedics was
insufficient to provide actual notice to the City. In its appellate brief, the City
discusses similar circumstances in City of Houston v. Miller, No. 01-19-00450-CV,
2019 WL 7341666 (Tex. App.—Houston [1st Dist.] Dec. 31, 2019, no pet.) (mem.
op.), in which the plaintiff asserted that the City of Houston had subjective
awareness of its fault in contributing to his injuries because, among other things, the
EMS Patient Care Report indicated that he told the paramedics who responded to his
motorcycle accident that he “hit a pot hole and lost control of [his] bike and was
thrown from it.” Id. at *2. In finding that the plaintiff’s evidence fell short in
providing the city with actual notice of his claim, the court observed that plaintiff’s
evidence “‘did not even imply, let alone expressly state, that the City was at fault’
–11– for the accident.” Id. at *5 (quoting City of Dallas v. Carbajal, 324 S.W.3d 537, 539
(Tex. 2010) (per curiam)).
Just as Miller’s statement to paramedics about the pothole was insufficient to
create a fact question on actual notice, Mazzaro’s statement to paramedics about the
“huge drop off” is similarly insufficient in this case. See id. Here, the City’s evidence
shows that the paramedics at the scene were focused on rendering emergency
medical services to Mazzaro and transporting her to the hospital. The reports
documented Mazzaro’s injuries, but did not imply or state that the City was at fault
for those injuries. “Many governmental units may, in the ordinary course of events,
have knowledge of . . . injuries . . . but no warning—‘notice’—that a lawsuit might
eventually be filed alleging the governmental unit was responsible in some way,
shape, or form.” Worsdale, 578 S.W.3d at 72; see also Carbajal, 324 S.W.3d at 538–
39 (holding that police report concluding that claimant drove “into [a] gap in [the]
street [that] was not properly blocked” only described “what apparently caused the
accident” but did not say who had failed to erect or maintain barricades, and was
therefore insufficient to put city on actual notice).
There is no evidence in the record that raises a fact question as to the City’s
subjective awareness of its alleged fault in causing or contributing to Mazzaro’s
injuries. “When the facts do not even imply the governmental unit’s fault, they are
legally insufficient to provide actual notice.” Worsdale, 578 S.W.3d at 64 (emphasis
–12– in original). Accordingly, we conclude there is no fact issue that the City had actual
notice under subsection (c) of section 101.101. See CIV. PRAC. & REM. § 101.101(c).
Conclusion
Under the applicable standard of review, we conclude there is no evidence the
City received formal notice of Mazzaro’s claims. Further, the evidence does not raise
a fact question as to whether the City had actual notice. Because lack of notice is an
incurable jurisdictional defect, we sustain the City’s first and second issues and
determine it unnecessary to address the City’s remaining issues. We reverse the trial
court’s order denying the City’s plea to the jurisdiction and render judgment
dismissing Mazzaro’s claims for lack of subject-matter jurisdiction.
/Bill Pedersen, III// BILL PEDERSEN, III 200103f.p05 JUSTICE
–13– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CITY OF DALLAS, Appellant On Appeal from the 134th Judicial District Court, Dallas County, Texas No. 05-20-00103-CV V. Trial Court Cause No. DC-19-00842. Opinion delivered by Justice MICHELLE MAZZARO, Appellee Pedersen, III. Justices Whitehill and Reichek participating.
In accordance with this Court’s opinion of this date, the order of the trial court is REVERSED and judgment is RENDERED dismissing appellee's suit for lack of subject-matter jurisdiction.
It is ORDERED that appellant CITY OF DALLAS recover its costs of this appeal from appellee MICHELLE MAZZARO.
Judgment entered this 23rd day of November, 2020.
–14–