City of Keller v. Michael DiPaolo

• Court: Texas Court of Appeals, 2nd District (Fort Worth)
• Decided: June 25, 2026
• Docket: 02-25-00600-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00600-CV ___________________________

THE CITY OF KELLER, Appellant

V.

MICHAEL DIPAOLO, Appellee

On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048-360361-24

Before Birdwell, Wallach, and Walker, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION

Appellant The City of Keller (the City) appeals from the trial court’s order

denying the City’s plea to the jurisdiction on the grounds of governmental immunity

under Section 101.101 of the Texas Tort Claims Act (TTCA). See Tex. Civ. Prac. &

Rem. Code § 101.101(a), (c). In a single issue, the City argues that the trial court erred

by denying its plea because Appellee Michael DiPaolo, who sued the City after he was

injured at the City’s recreational facility, failed to plead and prove that the City was

given notice of his claims within the six-month period required by the TTCA.

Specifically, the City asserts that DiPaolo failed to provide formal written notice of his

claims and that the City lacked “actual notice” of his claims in lieu of the statutory

notice requirements. Because we conclude that the City had actual notice of DiPaolo’s

claims, we affirm the trial court’s order.

I. Background

In 2022, the City owned and operated the Keller Senior Activities Center,

which offered various recreational and sports activities to members fifty-five years of

age and older. Among the sports offered by the City at its activities center was

pickleball; members played pickleball not on a pickleball court but on one of the

activities center’s basketball courts. Behind the back line of the court was an

unpadded section of cinderblock wall that formed the back of the gymnasium

containing the repurposed basketball court. It was on this court that DiPaolo, a

member at the activities center, sustained his injuries.

2 Several months before DiPaolo was injured at the activities center, the City was

notified of injuries sustained by other members while playing pickleball. For example,

in June 2022, one member fractured two ribs when she collided with the unpadded

wall after falling over a bench situated along the wall. In September 2022, that injured

member emailed the mayor and city council warning that before her fall, “numerous

people” had already been injured playing pickleball at the activities center. The City’s

Director of Community Services replied that the City had conferred with an architect

and had concluded that the recommended measure of adding pads to the unpadded

wall was not “justified” at that time.

On December 27, 2022, DiPaolo was playing pickleball at the activities center

when he “tripped” and “fell face forward” into the unpadded wall and then fell back

onto the ground. DiPaolo suffered severe and debilitating injuries—the activities

center’s staff observed “an opening on [the] top/back of [DiPaolo’s] head” and blood

and noted that he “could not feel [his] hand, arms, legs, or feet below [the] neck.”

DiPaolo was subsequently diagnosed with traumatic quadriplegia resulting from his

injuries.

In response to DiPaolo’s being injured, the City—through its employees—

compiled a “General Public Accident/Incident Report.” In the report, the City noted

the facts of DiPaolo’s injuries and how he was injured and presented “suggestions or

recommendations to prevent similar incidents,” under which it listed “[p]added wall.”

3 Approximately two hours after DiPaolo was injured, a member of the activities

center’s advisory board emailed the mayor and city council to report the incident. The

advisory board member noted that she had visited the activities center that very

morning to address the padding “problem,” and when she asked the activities center’s

manager to include the padding as “an agenda item,” the manager told her that she

would include it but that the proposal had previously been discussed and turned

down. The member stated in her email that her husband had been playing pickleball at

the activities center “since it opened” and had “personally witnessed three or four

accidents.” In her email, she further urged the City’s officials to implement an

“emergency resolution” to provide funding for the padding on the walls, asserting that

the City was “obligated” to make the courts safe.

A few days after DiPaolo was injured, the member who had broken her ribs in

June 2022 again emailed City officials expressing that she was “sure [they] are aware”

of DiPaulo’s “sustain[ing] a very serious injury to his head when he hit the concrete

wall” and that she felt that “injuries of this nature could have been avoided.” The

Director of Community Services replied that the City “is obtaining quotes for the

purchase and installation of additional padding for the west wall of the gym.”

Additionally, the City preserved video surveillance footage of DiPaolo’s being injured.

It preserved the footage for two years.

In March 2024, DiPaolo delivered a “Notice of Representation and

Preservation Notice” to the City. In December 2024, DiPaolo filed his lawsuit against

4 the City, alleging claims for premises liability, negligence, and gross negligence. The

City answered and filed its plea to the jurisdiction, alleging that it was immune from

suit under the TTCA due to DiPaolo’s failure to provide notice of his claims. After

hearing the parties’ arguments, the trial court denied the City’s plea, and the City

appealed.

II. Discussion

In its sole issue, the City asserts that it is immune from suit under the TTCA

due to DiPaolo’s failure to plead and prove that the City had “actual notice” under

Section 101.101(c). Specifically, the City contends that DiPaolo failed to present

sufficient evidence to show that the City was subjectively aware that it had acted with

gross negligence.

A. Standard of Review and Applicable Law

Immunity deprives a trial court of subject-matter jurisdiction to hear a

controversy against a governmental entity. City of San Antonio v. Tenorio, 543 S.W.3d

772, 775 (Tex. 2018). Municipalities such as the City are governmental entities

immune from suit and liability absent a clear legislative waiver of immunity. Worsdale v.

City of Killeen, 578 S.W.3d 57, 62 (Tex. 2019).

The TTCA provides a limited waiver of immunity only if a governmental unit

receives either formal or actual notice of a claim against it no later than six months

after the day the incident giving rise to the claim occurred. Tex. Civ. Prac. & Rem.

Code § 101.101(a), (c). Unless the governmental unit receives formal or actual notice,

5 the TTCA does not waive the governmental unit’s immunity from suit, and the trial

court lacks subject-matter jurisdiction. See Reyes v. Jefferson County, 601 S.W.3d 795,

797–98 (Tex. 2020) (“Notice is a prerequisite to subject-matter jurisdiction under the

TTCA . . . .”). Notice is thus a jurisdictional prerequisite to suit under the TTCA. Id.

at 798.

A governmental unit may challenge the trial court’s lack of subject-matter

jurisdiction by filing a plea to the jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d

636, 637–38 (Tex. 1999). The trial court may rule on the plea as a matter of law if the

relevant evidence is undisputed or fails to raise a fact question on the jurisdictional

issue. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex. 2004).

When the plea challenges jurisdictional facts, the standard of review will mirror that of

a traditional summary judgment; if the plaintiff’s factual allegations are challenged

with supporting evidence necessary to the consideration of the plea, the plaintiff must

raise at least a genuine issue of material fact to overcome the challenge to the trial

court’s subject-matter jurisdiction and to avoid dismissal. Alamo Heights Indep. Sch. Dist.

v. Clark, 544 S.W.3d 755, 771 (Tex. 2018). We review a trial court’s jurisdictional

ruling de novo. Id. at 805.

B. Actual Notice Under the TTCA

Notice is “a means of alerting governmental entities of the need to investigate

claims.” Worsdale, 578 S.W.3d at 64. It “allows for swift abatement of dangerous

conditions or practices, fosters early termination of litigation through settlement of

6 meritorious claims, and provides sufficient notice of potential claims to enable

governmental entities to make proper budgeting and tax decisions.” Id. Indeed, the

purpose of the TTCA’s notice requirement is to ensure prompt reporting of claims,

which enables governmental units to “gather information necessary to guard against

unfounded claims, settle claims, and prepare for trial.” Cathey v. Booth, 900 S.W.2d 339,

341 (Tex. 1995).

Although formal notice is the default option under the TTCA, see Tex. Civ.

Prac. & Rem. Code § 101.101(a), the formal notice requirement does not apply if the

governmental unit has actual notice, see id. § 101.101(c). Actual notice can replace

formal notice if the governmental unit has subjective awareness of (1) a death having

occurred, the claimant having received some injury, or the claimant’s property having

been damaged; (2) the governmental unit’s alleged fault in producing or contributing

to the death, injury, or property damage; and (3) the identity of the parties involved.

Reyes, 601 S.W.3d at 798; see Tex. Civ. Prac. & Rem. Code § 101.101(c).

The supreme court has clarified that actual notice requires the governmental

unit need only have subjective awareness of fault “as ultimately alleged by the

claimant.” Worsdale, 578 S.W.3d at 65; Harris Cnty. Sports & Convention Corp. v. Cuomo,

604 S.W.3d 149, 154 (Tex. App.—Houston [14th Dist.] 2020, no pet.). In other

words, there must be subjective awareness connecting the alleged governmental

conduct to causation of an alleged injury in the manner asserted by the plaintiff, a

7 standard that is necessarily subjective “because lack of formal notice is excused only

by actual, not constructive, notice.” Worsdale, 578 S.W.3d at 65.

Subjective awareness of alleged fault requires neither adjudication of liability

nor confession of fault. Id.; see Univ. of Tex. Sw. Med. Ctr. at Dall. v. Est. of Arancibia ex

rel. Vasquez-Arancibia, 324 S.W.3d 544, 550 (Tex. 2010) (“Fault, as it pertains to actual

notice, is not synonymous with liability; rather, it implies responsibility for the injury

claimed.”). The question of subjective awareness is not whether the governmental

entity believes it is liable, nor is it whether the entity should have made the connection

between injury and responsibility as alleged. Worsdale, 578 S.W.3d at 66–67. Rather,

the question is whether the governmental unit made the connection between its act or

omission and the plaintiff’s alleged harm or had knowledge that the connection had

been made. Id.

When actual-notice evidence is disputed, a genuine issue of material fact arises.

Id. at 66. When a jurisdictional fact issue is intertwined with the merits, the trial court

cannot grant the plea, but when the jurisdictional issue is not intertwined with the

merits, we must defer to the trial court’s express or implied factual determinations

that are supported by sufficient evidence. Id. However, actual notice can often be

determined as a matter of law, “even when subjective awareness must be proved, if at

all, by circumstantial evidence.” Id. (internal quotation marks omitted).

8 C. The City’s Actual Notice of DiPaolo’s Claims

Neither party contests that DiPaolo did not provide formal notice, nor do the

parties contest whether the City knew (1) that the injury had occurred and (2) that

DiPaolo was the party injured. The only element of actual notice contested by the City

is whether it was subjectively aware of its alleged fault as ultimately alleged by

DiPaolo. We conclude that the facts and evidence are sufficient to make such a

showing.

The City had access to official reports from the police department and the fire

department and to its own “General Public Accident/Incident Report” generated by

staff shortly after DiPaolo was injured. While these reports, standing alone, may not

be sufficient to establish the City’s subjective awareness of fault, see Tenorio, 543

S.W.3d at 778, the City also had knowledge of its role in DiPaolo’s injuries beyond

these routine reports. First, within hours of DiPaolo’s injuries, the City’s highest

officials (1) had been notified of DiPaolo’s injuries and of the role the lack of wall

padding had in their severity and (2) had been advised—by a member of its own

advisory board—of the necessity of installing wall padding to prevent similar injuries

in the future. Second, one week after DiPaulo’s injuries and in response to the

activities center member who wrote to the City “to advocate for [the City] to

reconsider” its position that wall pads were not “justified,” the City’s officials verified

that they were making efforts to install the wall padding. These communications show

that the City made the connection between DiPaolo’s injuries and its previous

9 decision not to install wall padding or, at the least, that the City had knowledge that

the connection had been made. See Reyes, 601 S.W.3d at 798 (“Reyes’s

communications with [the county’s claims administrator] coupled with its

acknowledgement, investigation, and denial of his claim establish the [c]ounty’s

subjective awareness that Reyes was claiming the [c]ounty was at fault in the manner

ultimately alleged in this lawsuit.”); Worsdale, 578 S.W.3d at 66–67 (concluding that

actual notice was established when evidence showed that, almost immediately after

motorcycle accident, “the [c]ity knew of allegations that it was responsible for

maintaining a road and that the failure to maintain the road had been identified as a

contributing factor to the injuries that provide the basis for th[e] lawsuit”).

Further, it is clear that the purpose of the notice requirement has been met.

The City was subjectively aware that other members had suffered injuries due to the

lack of sufficient padding on the walls around the court and that the lack of sufficient

padding also contributed to DiPaolo’s injuries, as he ultimately alleged in this suit;

therefore, the City had the opportunity to investigate the incident, generate reports,

and preserve video evidence necessary “to guard against unfounded claims, settle

claims, or prepare for trial.” See Cathey, 900 S.W.2d at 341. And the City’s subjective

awareness allowed it to provide for “swift abatement of [the] dangerous condition” of

the unpadded wall. See Worsdale, 578 S.W.3d at 64.

The facts and evidence conclusively establish that the City had subjective

awareness of its alleged fault in producing or contributing to DiPaolo’s injuries.

10 Accordingly, we conclude that the City had actual notice of DiPaolo’s claims within

the meaning of Section 101.101(c) of the TTCA.

D. The Recreational Use Statute Does Not Modify Actual Notice

The City contends that the issue of actual notice must be viewed through the

lens of gross negligence: “[T]here is not any evidence to suggest that [the City] had

actual notice of the incident sufficient to meet the requirements of [Section]

101.101(c), particularly when viewed through the lens of . . . case law on the issue of

‘actual notice’ and the applicable Recreational Use Statute’s gross negligence

standard.” It argues that there is no evidence establishing that it had subjective

awareness of its alleged fault because the facts fail to establish that it owed a duty to

DiPaolo or, alternatively, if it did owe him a duty, that it violated its duty in a manner

constituting gross negligence as required by the Recreational Use Statute. See Tex. Civ.

Prac. & Rem. Code §§ 75.001–.003. While the City is correct that the Recreational Use

Statute modifies the TTCA’s waiver of immunity in a recreational use context, it

incorrectly asserts that the Recreational Use Statute also modifies Section 101.101’s

notice requirements. Nothing in the text of either Chapter 75 or Section 101.101

contains any provision suggesting that the Recreational Use Statute modifies, waives,

or otherwise affects the notice requirement.

Generally, the Recreational Use Statute limits the liability of all landowners—

public and private—who permit others to use their property for recreation. Univ. of

Tex. v. Garner, 595 S.W.3d 645, 648 (Tex. 2019). Such landowners are effectively

11 immune from ordinary negligence claims, owing those who use their property for

recreation only the duty to not injure them intentionally or through gross negligence.

Id. As applied to government landowners, the statute’s effect is to limit the scope of

their liability by classifying recreational users as trespassers and requiring proof of

gross negligence, malicious intent, or bad faith to sustain a claim against them. Id.; see

Tex. Civ. Prac. & Rem. Code §§ 75.003(g) (“To the extent that this chapter limits the

liability of a governmental unit under circumstances in which the governmental unit

would be liable under Chapter 101, this chapter controls.” (emphasis added)), 101.058

(similar).

Section 101.101’s notice requirement, on the other hand, is not a liability-

limiting provision but is a jurisdictional prerequisite to suit. See Tex. Civ. Prac. & Rem.

Code § 101.101; Reyes, 601 S.W.3d at 798. A plaintiff relying on the TTCA to sue a

governmental unit for recreational injuries must satisfy the notice requirement before

the Recreational Use Statute comes into play, if at all. See Tex. Civ. Prac. & Rem. Code

§ 75.003(f) (noting that Chapter 75 does not function as a waiver of immunity). Thus,

while it would be proper to apply the Recreational Use Statute as a modification of

liability standards—as raised in a plea to the jurisdiction based on a failure to state a

claim—it is not proper to apply the statute as a modification of the notice

requirements of Section 101.101. Cf. Univ. of Tex. at Arlington v. Williams, 455 S.W.3d

640, 644–48 (Tex. App.—Fort Worth 2013) (treating the Recreational Use Statute and

12 Section 101.101’s notice requirement as distinct, independent inquiries), aff’d, 459

S.W.3d 48 (Tex. 2015).

The City relies on Garner to support its contention that the Recreational Use

Statute required actual notice of gross negligence, but this reliance is misplaced. In

Garner, the plaintiff was injured when she was struck on her bicycle by a vehicle driven

by a University of Texas at Austin employee on a street within a university-owned

apartment complex. Garner, 595 S.W.3d at 648. The university filed a plea to the

jurisdiction for failure to state a claim, alleging that the plaintiff had failed to produce

evidence of conduct beyond ordinary negligence and therefore had failed to allege the

gross negligence required to waive immunity under the TTCA when the Recreational

Use Statute was implicated. Id. The supreme court determined that the university’s

immunity had not been waived because the plaintiff had failed to state a claim upon

which relief could be granted; that is, the plaintiff had failed to allege any claim

involving gross negligence by the university that would waive immunity. Id. at 649,

651. The supreme court did not, as the City suggests, impose onto Section 101.101(c)

a requirement that the university must have subjective knowledge of gross negligence

when the Recreational Use Statute is implicated, as the City asks us to do in this case.

See generally id. Indeed, the City cites no case law—and we have found none—

imposing such a requirement, and we decline to extend the Recreational Use Statute’s

scope to Section 101.101.

13 III. Conclusion

Because we conclude that the City had actual notice of DiPaolo’s claims, we

affirm the trial court’s order denying the City’s plea to the jurisdiction.

/s/ Wade Birdwell

Wade Birdwell Justice

Delivered: June 25, 2026