Donnie Doyle Brown v. Corpus Christi Regional Transportation Authority

Opinion

ACCEPTED

13-15-00188-CV

THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS

6/11/2015 4:48:09 PM CECILE FOY GSANGER

CLERK

CAUSE NO. 13-15-00188-CV IN THE COURT OF APPEALS13th COURT FILED IN

OF APPEALS

FOR THE THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI/EDINBURG, TEXAS AT CORPUS CHRISTI, TEXAS6/11/2015 4:48:09 PM CECILE FOY GSANGER

Clerk

DONNIE DOYLE BROWN,

APPELLANT,

VS.

CORPUS CHRISTI REGIONAL TRANSPORTATION AUTHORITY, APPELLEE.

APPEALED FROM THE COUNTY COURT AT LAW NO. 1, NUECES COUNTY, TEXAS

THE HONORABLE ROBERT VARGAS

BRIEF OF APPELLANT, DONNIE DOYLE BROWN LAW OFFICE OF KEN HANNAM PARK GREEN ATRIUM 4444 CORONA DRIVE, SUITE 119 CORPUS CHRISTI, TEXAS 78411 TEL: (361) 853-8833; FAX: (361) 853-8946

ATTORNEY FOR APPELLANT ORAL ARGUMENT REQUESTED

NAMES OF ALL PARTIES AND THEIR COUNSEL APPELLANT DONNIE DOYLE BROWN TRIAL & APPELLATE COUNSEL KEN HANNAM Law Office of Ken Hannam Park Green Atrium 4444 Corona Drive, Suite 119 Corpus Christi, Texas 78411 Tel: (361) 853-8833 Fax: (361) 853-8946 E-Mail: kenhannamlaw@yahoo.com

APPELLEE CORPUS CHRISTI REGIONAL TRANSPORTATION AUTHORITY TRIAL COUNSEL THOMAS A. SILVER Dunn, Weathered, Coffey, Rivera & Kasperitis, P.C. 611 South Upper Broadway Corpus Christi, Texas 78401 Tel: (361)883-1594 Fax: (361)883-1599 E-Mail: tsilVer@dwcrk.net

APPELLATE COUNSEL KEN FIELDS McKibben & Villarreal 555 North Carancahua, Suite 1100 Tel: (361)882-6611 Fax: (361) 883-8353 E-Mail: kfiel;ls@rncV-law.com

TABLE OF CONTENTS

hgfl

Names of All Parties and Their Counsel ........................................ ..i

Table of Contents ............................................................. ..ii&iii

III. Index of Authorities ................................................................. ..iv

IV. Statement of Case ................................................................. ..2

Statement Regarding Oral Argument ............................................ ..2

VI. Issues Presented .................................................................... ..2

VII. Statement of Facts ................................................................. ..3

VIII. Summary of Argument ............................................................. ..5

IX. Standard of Review ................................................................ .8 .

Argument and Authorities ......................................................... ..9

- The Law ...................................................................... ..9

- The Circumstantial Evidence of “Subjective Awareness of Fault” ...l2

1. Argument on “Highly Intoxicated” .............................. .. 13 2. Other Cases Distinguished ..................................... ..14 3. Purpose of Notice Requirement Satisfied ...................... ..15

XI. Conclusion ......................................................................... .. 1 6

XII. Prayer ............................................................................... .. 16

XIII. Certificate of Service .............................................................. ..17

XIV. Certificate of Compliance ......................................................... ..l8

XV. Appendix .......................................................................... .. 19

1. Order Granting Plea To The Jurisdiction ............................... ..19

2. Corpus Christi Police Accident Report ............................... ..19

3. RTA — Bus Driver Report ................................................ ..19

4. RTA — Supervisor Report ................................................ .. 19

5. Photographs of side of Bus and Driver’s side View mirror .......... . . 19

6. RTA rules on checking right mirror for passengers running to catch the bus & so on ..................................................... ..19

7. Donnie Brown’s Affidavit ............................................... ..19

8. Caller.corn — Audit — RTA should work on reducing accidents ..... ..19

iii

HVDEX OF AUTHORITIES

Page #

Casso, MD. vs. Brand 776 SW2d 551, 558 (Tex. 1989) .................. ..9&16

City of Dallas vs. Carbafal 278 SW2d 802, 804 (Tex. App. — Dallas 2009) rev. 0.2. 324 SW3d 537 (Tex. 2010) ..................................... ..11

City ofDallas vs. Carbaial 324 SW3d 537 (Tex. 2010) ................... ..14

OrtizGuevara vs. City of Houston 2014 WL 1661, 837 p4 (Tex. App — Houston 514'” Dist. z 2014; .................................................. ..7&11

Marsaglia vs. The University of Texas El Paso 22 SW3d 1, 4 (Tex. App. —El Paso, 1999, pet denied) ................................................ ..9

Muniz Cameron County 2012 WL 1656326 (Tex. App — Corpus vs.

Christi Ma 2012 ................................................................ ..14

Ridgway vs. Ford Motor Company 82 SW3d 26, 29 (Tex. App — San Antonio 2002) rev ’d 0.2. 135 SW3d 598 (Tex. 2004) .......................... ..9

Texas Department of Criminal Justice vs. Simons 140 SW3d 338, 334 — 348 (Zex. 2004) ............................................................... ..6&10

Texas Department of Parks & Wildlife vs. Zlliranda 133 SW3d 217, 226 (Tex. 2004) ..................................................................... ..8

Texas Department of State Health Services vs. Gonzalez 2014 WL 7205332 (December20]4)

University of Texas Southwestern Medical Center at Dallas vs. Estate ofArancibia 324 SW3d 544, 549, 550 (Tex. 2010)

Statutes, Codes, & Rules Texas Civil Practice & Remedies Code §10 1 . 101

Texas Government Code §311.034

iv

CAUSE NO. 13-15-00188-CV IN THE COURT OF APPEALS FOR THE TI-HRTEENTH DISTRICT OF TEXAS AT CORPUS CHRISTI, TEXAS

DONNIE DOYLE BROWN,

APPELLANT,

VS.

CORPUS CHRISTI REGIONAL TRANSPORTATION AUTHORITY, APPELLEE.

APPEALED FROM THE COUNTY COURT AT LAW NO. 1, NUECES COUNTY, TEXAS THE HONORABLE ROBERT VARGAS

BRIEF OF APPELLANT, DONNIE DOYLE BROWN TO THE HONORABLE COURT OF APPEALS:

NOW COMES Donnie Doyle Brown and respectfully submits his brief in support of his appeal.

IV.

STATEMENT OF THE CASE

This is a personal injury case involving a bus and pedestrian brought

pursuant to the Texas Tort Claims Act.

Mr. Brown did not give written notice of his claim to the RTA but alleged they had actual notice. Written notice is a jurisdictional requirement.

The RTA filed a Plea to the Jurisdiction stating they knew of the accident

but did not have “actual subjective awareness of its fault.”

The Trial Court granted their Plea to the Jurisdiction and dismissed the case.

Appellant, Donnie Doyle Brown, will be referred to as Mr. Brown and the

Appellee, Corpus Christi Regional Transportation Authority will be referred to as

the RTA.

V.

STATEMENT REGARDING ORAL ARGUMENT Oral argument will aid the Court’s decisional process by addressing (1) any

questions the Court may have on the circumstantial evidence and (2) how that

evidence creates a fact issue on whether the RTA had “actual subjective awareness of their fault.”

VI.

ISSUES PRESENTED

The principal issue is whether the Trial Court erred in granting the RTA’s

Plea to the Jurisdiction.

The answer to that issue depends on whether or not Mr. Brown raised a fact

issue that the RTA had “actual subjective awareness that its fault produced or

contributed to the claimed injury.”

VII.

STATEMENT OF FACTS

On May 04, 2012, l\/Ir. Brown was attempting to board a RTA bus on South Alameda Street near the intersection of Texas Trail when the bus driver suddenly

drove off with his arm stuck in the rear bus door, dragging him and causing him to

fall to the street. The bus ran over his left am seriously injuring him

(TR—8& 111 - 112).

The bus driver, Angelo Franzone, immediately notified RTA dispatch to

call 911 (TR— 35 — 37).

The Corpus Christi Police prepared a report (TR — 93 — 97) that described

the accident and noted “#59” under “Factors & Conditions’ that “Pedestrian

FTYROW to vehicle.” No specific factor was attributed to the bus driver,

however, the police photographer did note “I photographed the scene, including the

View from the driver’s seat of the right side mirror” (TR 47 & 97). Photographs of

the right side mirror show a clear and unobstructed View of the side of the bus and

bus stop (TR — 85 — 92).

Written statements were made by the bus driver, Angelo Franzone

(TR — 35 — 37) and RTA Supervisor Charles Rogers (TR38 — 40) stating that

.3.

Mr. Brown was “running” behind my bus or “hurrying after the bus and then fell or stumbled. RTA’s Director of Safety & Security, Mike Pefanis, also present at the accident scene, wrote a “Vehicle Collision Rating” a month later that the accident

was “Non-Preventable” (TR — 130). The police and RTA reports show no

indication of talking with Mr. Brown about how the accident occurred. He, of

course, was taken to the hospital for surgery.

The lawsuit was filed twenty-three months later on March 28, 2014.

Mr. Brown never gave written notice of his claim to the RTA within six months of the accident but alleged the RTA had actual notice of the incident in accord with

§l01.l0l of the Texas Tort Claims Act (TR — 8).

Some initial written discovery was exchanged when the Plaintiffs attorney

filed a Motion To Compel Discovery (TR — 18) and the RTA responded with a

Plea To The Jurisdiction (TR — 65).

Attached to their Plea was an Affidavit of Mike Pefanis - RTA Director of

Safety & Security dated September 19, 2014, which states for the first time that

Mr. Brown was “reportedly highly intoxicated at the time of the incident,”

(TR — 77).

Mr. Brown’s Response To The Plea To Jurisdiction (TR — 79) attached an

Affidavit of Donnie Brown (TR — lll) stating his arm got stuck in the door and

could not get free until he tripped and fell under the wheels of the bus. He also

5

denied he was intoxicated. Mr. Brown also objected to Mr. Pefanis’ hearsay

affidavit (TR — 1 13).

The Trial Court allowed Mr. Brown limited additional discovery

(See Docket Sheet TR — 177) to learn of (1) the bus driver’s RTA driving record and (2) obtain the RTA’s bus manual regarding bus passenger procedures.

The additional discovery showed the bus driver had, at least, two prior bus

accidents involving the right side of the bus (TR — 128; 138 & 139) and a bus

manual (TR — 149 — 168) that required bus drivers to:

1. “Check your right mirror for passengers running to catch the bus,”

(TR— 153);

2. “To prevent collisions give passengers... More Time,” (TR - 153);

3. “Check doors to make sure they’re clear,” (TR ~ 152); and several other bus rules the bus driver violated.

More on this in argument.

A second hearing on the RTA’s Plea To The Jurisdiction was held on

March 26, 2015 and the Court granted the Plea which led to this appeal.

VIII.

SUMMARY OF ARGUMENT

The Law

The Texas Tort Claims Act §10l.l01 requires a claimant to give written

notice to a governmental unit of his claim reasonably describing (1) the injury

claimed; (2) time and place of the incident; and (3) the incident. This is a jurisdictional requirement. An exception to the requirement is if the governmental unit has actual notice.

The Supreme Court of Texas in Texas Department of Criminal Justice vs.

Simons 140 SW3d 338, 344 — 348 (TEX 2004); stated “actual notice” to a

governmental unit requires knowledge of... (2) the governmental unit’s alleged

fault (in) producing or contributing to the death, injury, or property damage

(emphasis added) p. 344. The Court also said that “actual notice” includes

subjective awareness of its fault,” p. 347. “We have long held that actual notice

is a fact question when the evidence is disputed. In many instances, however,

actual notice can be determined as a matter of law. There will be times when

subjective awareness must be proved, if at all, by circumstantial evidence,”

p. 348 (emphasis added).

In University of Texas Southwestern Medical Center at Dallas vs. Estate of

Arancibia, 324 SW3d 544, 549, 550 (Tex. 2010) the Supreme Court said a

governmental unit cannot disclaim subjective awareness by alleging its

investigation found no breach of duty or of standard care. Fault is not synonymous

with liability.

“No court has held that fault must be exclusively the governmental unit’s.

Rather, the Plaintiff must present some evidence of the city’s knowledge that it produced or contributed to the injury.” Ortiz Guevara vs. City of Houston, 2014

WL 161 837, 19.4 (Tex. App. —H0ust0n (14th Dist.) 2014) (emphasis addeaD.

The Circumstantial Evidence

The notion the RTA safety director did not know the RTA bus driver was at fault is not credible!

The circumstantial evidence that the RTA actually knew they were at fault is as follows:

1. The RTA driver actually drove his RTA bus over Mr. Brown’s left arm. His bus surely produced or contributed to the injury!;

2. Although only two persons were involved, Mr. Brown and Mr. Franzone, the bus was the “sole instrumen of injury. The RTA ”

may want to argue comparative fault, but surely the bus driver’s fault contributed or produced the injury;

3. This is a motor vehicle accident and Virtually every motor vehicle accident is caused in whole or part, by a failure to keep a proper lookout, stop or brake. Obviously this bus driver did not see Mr. Brown in time or stop and that is evidence of fault and raises a fact issue; How could the RTA not know of its fault?;

4. The police photographed the bus driVer’s side view mirror which showed a clear View of the side of the bus and bus stop. What was the police photographer’s purpose or thought in photographing this? To ask the question “why didn’t you see Mr. Brown?;

5. The following bus driving rules were violated or ignored by the bus driver:

- “Check your right mirror for passengers running to catch the bus” (TR— 153);

- “Check doors to make sure they are clear before closing and leaving” (TR— 152); and - “To prevent collisions give passengers with mobility problems, packages, or intoxicated passengers... More time and More distance!” (TR— 153).

The Director of Safety & Security, Mike Pefanis, ignored these rules in his accident analysis. These rules surely were made to avoid the type of accident the basis of this lawsuit.

6. The bus driver had two prior accidents that were similar or relevant to Mr. Brown’s accident (TR — 128; 138 — 139). The Director of Safety & Security had to know this.

7. The RTA had a 2012 bus audit that concluded the RTA had too many preventable accidents (TR — 106 — 108).

Mr. Brown argues the RTA actually knew they were at fault, in whole or in part. They just did not want to admit it because the police did not note the bus

driver was at fault. But the police did not know of RTA bus rules violated nor did

the police talk to Mr. Brown. A trial is needed to determine the credibility of the RTA people. That is a fact issue.

IX.

STANDARD OF REVIEW

A plea to the Jurisdiction challenges the Trial Court’s jurisdiction over the

subject matter. Subject matter jurisdiction is a question of law; therefore an

appellate court reviews de novo a trial court’s ruling on a plea to the jurisdiction

Texas Department of Parks & Wildlife vs. [Miranda 133 SW3d 217, 226

(Tex. 2004).

The standard review of evidence “generally mirrors” that of a traditional

motion for summary judgment (Id. — 228).

The Court will take as true all evidence favorable to the non-movant and

indulge every reasonable inference and resolve any doubt in favor of the non-

movant (Id. at 228).

If the non-movant presents more than a scintilla of evidence on the

challenged elements, it is entitled to a trial on the merits. Ridflay vs. Ford Motor

Company, 82 SW3d 26, 29 (Tex. App. — San Antonio, 2002) rev ’d 0.2. 135 SW3d

598 (Zex. 2004 1. A non-movant produces more than a scintilla when the evidence “rises to a level that would enable reasonable and fair minded people to differ in

their conclusions.” Marsaglia vs. The University of Texas El Paso, 22 SW3d 1,4

(Tex. App. —El Paso, 1999, per. Denied).

If the credibility of the affiant or deponent is likely to be a dispositive factor

in the resolution of the case, then summary judgment is in appropriate.

Casso, MD. vs. Brand, 776 SW2d 55], 558 (Tex. 1989).

X.

ARGUMENT & AUTHORITIES

Law

The Corpus Christi Regional Transportation Authority “RTA” is a

governmental body and the Texas Tort Claims Act applies. §l0l.l0l of the Texas

Civil Practice and Remedies Code states the following:

.9.

10

§101.101 — Notice

(8) A governmental unit is entitled to receive notice of a claim against it

under not later than six months after the day that the this chapter

incident giving rise to the claim occurred. The notice must reasonably describe:

(1) The damage or injury claimed; (2) The time and place of the incident; and (3) the incident.

(b) A and ordinance provisions requiring notice within a city’s charter

charter period permitted by law are ratified and approved.

(C) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply 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.

This notice provision is a statutory prerequisite and jurisdictional

requirement in all suits against a governmental entity, §311.034 of the Texas

Government Code.

The Supreme Court of Texas in Texas Department of Criminal Justice vs.

Simons 140 SW3d 338, 344 — 348 (Tex. 2004); stated “actual notice” to a

governmental unit requires knowledge of... (2) the governmental unit’s alleged

fault (in) producing or contributing to the death, injury, or property damage

emphasis added) p. 344. The Court also said that “actual notice” “includes

subjective awareness of its fault,” p. 347. “We have long held that actual notice

is a fact question when the evidence is disputed. In many instances, however,

actual notice can be determined as a matter of law. There wiH be times when subjective awareness must be proved, if at all, by circumstantial evidence,”

p. 348 (emphasis added).

“Subjective awareness is required because if a governmental entity is not

aware of fault it does not have incentive “to gather information. .

.” (Id. — 348).

“Subjective” means based on individual’s perceptions, feelings or intentions.

City of Dallas vs. Carbaial 278 SW3d 802, 804 (Tex. App. V Dallas 2009), rev’d

ag. 324 SW3d 537 (Zex. 2010).

In University of Texas Southwestern Medical Center at Dallas vs. Estate of

Arancibia, 324 SW3d 54, 549 550 (Tex. 2010) The Supreme Court said a

governmental unit cannot disclaim subjective awareness by alleging its

investigation found no breach of duty or of standard care.

“Fault as it pertains to actual notice, is not synonymous with liability, rather

it implies responsibility for the injury claimed,” (Id. 550).

“No court has held that fault must be exclusively the governmental unit’s.

Rather, the Plaintiff must present some evidence of the city’s knowledge that it

produced or contributed to the injury.” Ortiz Guevara vs. City of Houston 2014

WL 161 837, 17. 4 (Tex. App. ~Houst0n (14th Dist.) 20104).

Mr. Brown’s argument is that the RTA did an investigation and wrote a

report that absolved them of any fault and blamed the other guy. The RTA and police did not talk to Mr. Brown because he went to the hospital.

.11-

l\/Ir. Brown is not arguing the RTA “should have known’ of their fault but

rather they knew but did not want to admit it. The RTA did a “cover up”

investigation and “white wash” report.

The Circumstantial Evidence of “Subiective awareness of fault”

The circumstantial evidence is:

1. theirbus driver actually ran over Mr. Brown’s left arm and thus “produced or contributed” to the accident. The bus was the “sole instrument of injury.”;

motor vehicle accidents usually are caused by a failure to keep a proper lookout or stop a vehicle. This bus driver obviously did not see Mr. Brown in time to avoid the accident but the RTA bus driving requirements listed below require him to look out for people running to catch the bus (TR — 153). How can the RTA ignore their own rules and exonerate their bus driver?;

the Corpus Christi Police report notes the bus driver’s side View mirror was photographed (TR — 47 and 95) and there are photographs of his clear View (TR 85-92). At least one policeman thought it important to know what the bus driver’s view was. This is asking “Why didn’t you see him?” the RTA produced their bus manual which had many bus driving rules which this bus driver has broken or ignored including, but not limited to:

- “Check your right mirror for passengers running to catch the bus” (TR— 153);

- “Check doors to make sure they are clear before closing and leaving” (TR— 152);

- “To prevent collisions give passengers with mobility problems, packages, or intoxicated passengers... more time and more distance!” (TR — 153);

.12.

Balance the need for safety with the need to provide service (TR— 153);

Pedestrian incidents are extremely serious (TR — 162); and

Operators should be alert to awaiting passengers... (TR — 166). Surely the Supervisor and Director of Safety &Security knew those rules.;

These are exactly the type of rules meant to avoid this type of accident Mr. Brown had.

5. Two prior accidents by the bus driver:

A prior incident report about the bus driver in issue dated September 28, 2010 Incident Report & Complaint: where complainant stated that when he alighted the bus the bus driver closed the door on his hand and when complainant asked the bus driver, “Why did you do that? ” the bus driver said, “I don ’t care whatldid. ” (Uage — RTA 32) (TR — 128),‘

A prior incident report about the bus driver in issue dated ,

February 15, 2011 Incident Report: where the RTA bus driver in this case previously hit and shattered the mirror on a Fed Ex truck parked along the side of the road (page — RTA 50) (TR — I39);and

6. A RTA Bus Audit stating the RTA has had too many preventable accidents (TR — 106 — 108) might be an incentive not to categorize Mr. Brown’s accident as “Preventable,” not to mention the cost of liability. Blame the other guy!

The Preiudicial ArgLn1ent on “I-Lighlv Intoxicated”

During the first hearing on the Plaintiffs Motion To Compel Discovery and

Defendant’s Plea To The Jurisdiction, no mention was made of Mike Pefanis’

Affidavit stating Mr. Brown was “reportedly highly intoxicated at the time of the incident.” Mr. Brown’s attorney did file a written objection to the Affidavit

(TR — 113) as hearsay. At the second hearing it was mentioned and was highly

prejudicial!

If this Court looks at the police reports, and the report of the bus driver, the

RTA Supervisor and Mr. Pefanis’ report of June 01, 2012, there is no mention

Mr. Brown was intoxicated. Mr. Brown denied it in his Affidavit — but even if it

were true the RTA bus rules require their bus drivers to give intoxicated passengers

MORE TIME (TR -153).

Other Cases Cited By The RTA Distinglished

At the hearing, counsel for RTA cited several cases in their Plea to the

Jurisdiction that can be distinguished from this case.

In City of Dallas vs. Carbaial 324 SW3d 537 (Tex. 2010) Plaintiff sued the

City of Dallas when she drove into an excavation not properly blocked or marked.

Clearly, the incident did not show any city official present at the time of the

accident nor does it show who failed to erect the barricades. The City had no

notice they were at fault. The RTA also cited two cases from this 13”‘ Court.

In Murziz vs. Cameron Countv 2012 WL 165632, May, 2012 this Court

affirmed the granting of a Plea to the Jurisdiction. In that case a deputy sheriff was

in pursuit of a suspect in a black pickup truck that crashed into a vehicle killing

.14-

Ms. Muniz. In his criminal case, the driver of the pickup truck “took full

responsibility” for the collision and only later changed his story.

In Texas Department of State Health Services vs. Gonzalez 2014

WL 7205332 December 2014, Laura Gonzalez was involved in a “four-car pile-

up” on Highway 83 with the Texas Department of Health Services’ vehicle being

the third car from Ms. Gonzalez’s Vehicle.

In our case there were only two participants the bus driver and the

pedestrian. The driver ran over his arm and participated in the accident directly.

Purpose Of Notice Requirement Satisfied

The purpose of §l0l.101 of Texas Tort Claims Act is to enable

governmental units to gather information necessary to guard against unfounded

claims, settle claims, and prepare for trial.

That purpose seems to have been met here. This is not an “unfounded

claim.” Certainly, the RTA was immediately on the scene of the accident because they take “pedestrian incidents... extremely serious and [they] must be handled

with the highest possible degree of sensitivity and professionalism,” (TR — 162).

They knew the details and common sense asks why didn’t the bus driver keep a

proper lookout?

Mr. Brown argues this standard of “actual subjective awareness of fault”

promotes the fraudulent denial of fault by governmental officials or allows them to

-15.

assert “plausible deniability” and should be replaced by a “reasonable notice”

standard. The RTA was criticized for too many preventable accidents

(TR — 106 — 108). If the RTA was a private company, they never would get away with arguing they did not actually know they were at fault.

XI.

CONCLUSION

Because of all the circumstantial evidence including (1) the bus driver

running over Mr. Brown’s arm; (2) violations of bus operating rules; (3) prior

accidents of the bus driver; and (4) a 2012 Audit that said the RTA had too many preventable accidents, Mr. Brown has raised a fact issue on whether the RTA actually knew of its fault, in whole or part, and Mr. Brown should be allowed to

cross-examine the RTA on its denial of “subjective awareness of fault.” When the credibility of witnesses is a dispositive factor a summary judgment is

inappropriate, Casso, MD. vs. Brand 776 S W251 55 J 558 (Tex. 1989).

XII.

PRAYER

Mr. Brown requests the Court to reverse the Plea to the Jurisdiction.

.15.

Respectfully Submitted,

LAW OFFICE OF KEN HANNAM Park Green Atrium 4444 Corona Drive, Suite 119 Tel: (361) 853-8833; Fax: (361)853-8946

I

Z , .

’;’””‘—”’

By:

Ken Hannam State Bar No. 08925400

ATTORNEY FOR APPELLANT

XIII.

CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the above and foregoing

Appe11ant’s Brief was this day e-mailed and mailed by Certified Mail, Return

Receipt Requested to the Appe1lee’s Attorney, Ken Fields on this the 4 fflt day

of June, 2015.

Via E-Mail: k[teldg@‘1n_m{-law.c0m and Via CMRRR #: Hon. Ken Fields McKibben & Villarreal 555 Notth Carancahua, Suite 1100 Corpus Christi, Texas 78401 / /

Ken Hannam

CERTIFICATE OF COMPLIANCE Pursuant to the Texas Rule of Appellate Procedure 9.4 (i) (3), I hereby

certify that this brief contains 4,194 words (counting all parts of the document).

This is a computer-generated document created in Microsoft Word, using 14-point

font. In making this certificate of compliance, I am relying on the word count

provided by the software used to prepare the document.

Kéfl Hannam

.13.

APPENDIX

Order Granting Plea To The Jurisdiction

Corpus Christi Police Accident Report

RTA — Bus Driver Report RTA — Supervisor Report

Photographs of side of Bus and Driver’s side View mirror

RTA rules on checking right mirror for passengers running to catch the bus & so on Donnie Brown’s Affidavit

Caller.com — Audit — RTA should work on reducing accidents

169

CAUSE NO. 2014CCV-60671-1 DONNIE DOYLE BROWN § IN THE COUNTY COURT (D.O.B.: 10/os/1955) §

AT LAW No. ONE

S?

v. § §

CORPUS CHRISTI REGIONAL § TRANSPORTATION AUTHORITY, § MV CGNT%CT TRAN SPGRTATIGN , INC.,§ ANI) MV IKANDFUKIAIIUN, INL,., LJ/J5/LA 9 THE B § NUECES COUNTY, TEXAS ORDER GRANTING PLEA TO THE JURISDICTION

Transportation Authority. The Court, after considering the Plea to the Jurisdiction; the evidence

nrooerlv before the Court" the Response filed by the Plaintiff; hereby finds that Defendant, Corpus

Christi Regional Transportation Authority’s Plea to the Jurisdiction should be and is, therefore,

GRANTED.

IT IS ORDERED, ADJUDGED AND DECREED, that Defendant’s Plea to the Jurisdiction is hereby GRANTED and this cause is hereby DISMISSED in its entirety. This Order disposes of

all parties and claims, and is an appealable Order.

SIGNED on this the Afl day of n/i /I(

I

MJf\/ , 2015.

~~

.6"-.-.‘.-Kn

copies to.’ - Mr. Ken Hannam, LAW OFFICE OF KEN HANNAM, Park Green Atri 444 Corona Drive, Suite 119, Corpus Christi Texas 78411 I Mr Thnmm A ‘lilver UIINN WFATHERED COFFEY RIVERA & KASPERITISLP.C., 611 S. UDDBI‘

Broadway, Corpus Christi, Texas 78401

~ 12;

Texas Seyartment of Transportatiee EAST 11”‘ STREET AUSTIN, TEXAS yam-2483 l l (512) 4638700 www.TxpoT.Gov |

Thu, 17 Apr 2014

STATE OF TEXAS §

This is to certify that Debra Vermillion, am employed by the Texas Department of I,

Transportation (Department); that am the Custodian of Motor Vehicle Crash Records for such

I

Department; that the attached is a true and correct copy of the peace officer's report filed with the Department referred to in the attached request with the crash date of Fri, 04 May 2012 , which occurred in Nueces County; that the investigations of motor vehicle crashes by peace officers are authorized by law; that this Texas Peace Officer’s Crash Report is required by law to be completed and filed with this Department; that this report sets forth matters observed pursuant to duty imposed by law as to which matters there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law.

J

Debra Vermillion, Director Crash Data and Analysis Section P. O. Box 149349 Austin, Texas 78714 (512) 486-5780

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1: FATAL IE CMV 1] SCHOOL BUS 1:1 RAILROAD 1:1 MAB QEHOOLZONE El suPPLeM1=_NT D Units 1_1_12 prsns.|_|lJil 016*‘ ID

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Texas Peace Officars Crash Report [Foml CR4 1I1l2010)

Mail to: Texas Depa11men|of‘fransp1:rtaIion_ Crash Records. 12.0. Box 149349, Austin, TX 73714, Questions? CaJ1(512) 455-5780 I.;:-_ Refertamiached Cude SheeliorNumbeIm fields '

Page 1 of 3 """‘“ t= These fidds are required on an additional sheets submitted far this crash (ex; additinna! vehides. ommanls. Injured etc.).

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Num. May Haveconlrib. 33 40 41 _42 43 44 E,2 Unix Conlribuling Covilribuling Weather

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Opinionofwhat Happened Field Diagmm-Nana Stale lnves1iga1cg‘s Narratiye

(Attach Additional Shee1s If Necessary)

‘Mme N°'flh

Unit# 1 was traveling northwest in‘ the" 3300 block of s Alameda St and approaching the Texan Trail intersection‘. Drive: of Unitfé 1' had stopped for a ragianal Transportation Authority Bus Stop té load passengers. There were-2 individuals at 3119 stop, Witness and Pedestrian. when the bus stopped, witness got an and the 3% Pedestrian had fallen asleep. As the an bus began to 3 move Pedestrian woke up 2:.nd'atbampted to get on. Witness than jmizpad 5:": x-.1-.a'bua in an attempt to help _-the 2 §_1=edaa:z:‘.an en, bur. chabua began to move again. §“1=adaax-.::‘.an attenptad to grab huld of ma bus, lost his

Ebalance due to the curb, ran. and was dragged for _

a.pp=oxina:aJ.y.1o feat. Whan he .1a: go of thavbus he fell- ? to ;t.\-Ae ground and'I:ha right zaxu-_ r.i_za‘ of the bus ran 5;

over the pada.-n-{::‘.ans left arm. wzmzsis mums:

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210 S ALAMEDA ST, CORPUS CERISTI, TX 73401 (351) ss7—7235 55 Time Noljfied g QAHRMM) 1 4 3 6 . How mmed DISPATCHED

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Law Enfouzmeni and TxDOT Use ONLY. page 1 Form CR4 WW2” Case in c12u3397 TXDDT Crash in J supp|en-ggnf

Crash Dale «Crash ‘fime 3 County TMM/DD/YYYY] 0151' 0 4 ’

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Mum 0 2 0 0 v-Agency CORPUS CHRISTI POLICE DEPARTMENT -L__I_;\_J__\;_l_,!

Supplement type: PHOTO CALLICSI

CCPD Forensic Services Division Supplement Report

Requested By: D. CONNER #1053.

Latenecase Number..N/A

Lab Case Number: N/A "

Narrative: -

. .

ON 05/04/12, I RESPONDED TO AN ASSIST AT 3300 BLOCK OF S. ALAMEDA ST. IN REFERENCE TO A MAJOR TRAFFIC ACCIDENT y

INVOLVING A PEDESTRIAN. I ARRIVED AT APPROXIMATELY 3:26pm AND WAS DIRECTED TO A REGIONAL TRANSIT AUTHORITY BUS STOP IN FRONT OF 3302 S. ALAMEDA ST. ALONG THE NORTHBOUND LANE OF S. ALAMEDA ST. AND SOUTH OFTEXAN TRAIL. THERE WAS A REGIONAL TRANSIT AUTHORITY BUS #230 IIC# TX:8S8767 STOPPED CURBSIDE NORTH OF THE BUS STOP. THE BUS HAD BLOOD-LIKE MATERIAL ON THE RIGHT REAR WHEE. (TWO 0‘ CLOCK POSITION). SOUTH OF THE BUS POSITION THERE WAS BLOOD—LIKE MATERIAL, BROKEN GLASS AND A ROUND RING (BEEL) CURBSIDE ALONG THE NORTHBOUND LANE. ON THE GRASS THERE WAS A STAINED, DAMAGED WATCH. THE CURB FACE SOUTH OF THE BLOOD-LIKE MATERIAL HAD SCRAPES AND'A BROWNISH STREAK D(TENDING TO'A POINT PROXIMATE THE NORTH END OF THE BUS STOP KIOSK. A GOUGE-LIKE MARK WAS ON THE CURE AT THAT "

POINT. ’ '

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I PHOTOGIRAPHED THE SCENE, INCLUDING THE VIEW FROM THE DRIVER‘ S SEAT OF THE RIGHT SIDE MIRROR. \/ ICLEARED FOR FOLLOW'UP AT CHRIST US SPOHN MEMORIAL HOSPITAL (2606 HOSPITAL BLVD). I MADE CONTACT WITH THE HOSPITAL STAFF WHO WHERE ENROUTE TO SURGERY WITH A MALE IDENTIFIED TO ME AS DONNIE BROWN (dob: I0/D6/S6). AT APPROXIMATELY 4:20pm PARTIAL PHOTOGRAPHS WERE OBTAINED OF MR. BROWN REFLECTING INJURIES TO THE LEFT SIDE OF THE HEAD, LEFT HAND AND A BANDAGED LEW ARM.

THE IMAGES WERE DOWNLOADED INTO THE DIGITAL IMAGE MANAGEMENT SYSTEM (DIMS).

Evidence.(;ollected: NONE

Evidence Disposition: Submitted to Property: Secured in Evidence Vault: Deszmyed:= '

.

Released to: Authority of: .

Latent Lifted - Yes/No: NO ‘

Numberof Ca'rds Submitted:

Examiner‘s '

Initials:

Photos Taken - Yes/No: YES Type: 35mm/Color/B&W/DigilaI/Serial#: DIGITAL/DIMS DOWNLOAD

555$? med) PREBUL, JOHN T/I N‘Em_ 2276 Agency CORPUS CHRISTI POLICE DEPARTMENT

_

Law Enforcement and TxDOT Use ONLY. Sum:!emenlPa9e 2 C1203397 TxDOT Crash ID . .

Case ID

F°,mCR'3Wo1,2mD _ Crash Date «Crash Tlme C fmmmnmw, 0.51’ n 4 I 2 o 1 2 (WRMM) 1 4 3 5 fmfifimy NUECES .

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CORPUS CHRISTI POLICE DEPARTMENT lnvesli ‘D Narne(%ar§?1red) PREBUL, JOHN Num _ 2276 Agency

G U REGioNAL TRANSPORTATION AUTHORITY .:9‘”"_“i‘

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EMPLOYEE REPORT or

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ACCIDENT/INCIDENT/lNJURY

Note: Print legibly in inl: or type all applica le information an both sides prior to submitting.

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Employee’: Name: Driver Lie #: 57597655‘ Exp. D Qfi C) F

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g5 Month a; e Year Tim};

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Q Vehicle Accident U Passenger Accident 0 /9

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Employee Personal Accident/Injury No. Passengers f3’Vehicle Incident 0 Passenger Incident D Disturbance D Illrlus OtherO No. Courtesy Cords

Complete this side for all accidents and incidents (for vehicle and/or passenger accidenlx - also complete reverse side ‘J

Ha

Describe accident/Incident completely (if needed, use additional paper);

‘Pa/‘A9 ,£7‘' £5’. [#5 34/‘)!/,9 /‘/réa£¢-—-.4’.-. df-A5‘ gs,-—-_ 7% A 926/ on /j’7Q‘=*'l-4-/4' i7Z,a94 g‘7z?4«,7

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Was person a passenger pricr lo incident? Yes D D No D Yes D No Transpcrled to Medical Attention? Cl Yes 0 No I 7%, Did you request and/or receive medical attention?

5 51m DControc1 C] Other

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Dove oi ee’s Signature Employee Status:

________:_j_,__

logged Use Onlyl Signature oi Supervisor Receiving Report by (Office

RT/1000001

‘Complete this side for all vehicle 0 and/or passenger acciclenls. Read and Complete All Areas 0 that gpply. ,

Com;-zuni Ehirll: How lor were you from point oi collision or passenger occidenl when olhefvehicle or pedestrian was lirsl seen? '

Feel.

Howlnrhunzolsiorl/plmen9uu:n7daiwl1u'vyouoppl'iedyombroies? Fed __

M.P.H.

Estimated Speed of your Vehicle at Time of Collision/Passenger Accident M.P.H. How far did your vehicle more alter colision? Feel

Were Police nolilied? Cl Yes D No Were called scene? D Yes D No Police Io Police Ollicer Is) Police Curl! __ was Ambulance Requested? Cl Yes D No By Whom? I-onspolted in Hospital? a Yes D No Hospital? — "'

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.

E» s 3 ln|ured: 3 § E 3 Names Addresses Phone 5?. Apparent Injuries A? 3 6 65

DidyoundiceonyequipImrItdel$v/liledoingyowpro-hipinspec1im?(5$,Flools.dous,sems.Brd:3.Rrxiio,BOdvDarioge,Etc} DYes U Na Describe Defects

Did you notily someone ol deledsfia Yes O No Who did you nalily? How? When? Passenger Accident: Was Person; D Boarding C] Alighling D On Board El Al Front Door D At Rear Door D On D Lill Slruclt by Doors Molion ol RTA Vehicle: 0 Standing C] Starling D Stopping D Running C] Struighl aon Curvcjfl Going MPH Steps D Front Plollorm D Aisle

I

A Fall, Location: U Fran!‘ E] Center Sleps E] Center Plotlorrn.

U Yes l:.lNo. Distance lrom Vehicle outside ll

Did Person come into contact with RTA Vehicle when Falling? if Ft

Condilion ol: Fronl Steps Center Sleps Distance of involved door from curb? Fl./Inch

U Forked Vehicle DSideswipe .

_

Vehicle Al:cidelIf:DFixed Object D Other Veh. U Pedoslrion Cl At Bus Slop D Head-an U 0 Other:

m D-Turning Leh Backing churning Right veh. Direction: E] North ‘ 0 Soulh U Easl Dwest D5top Sign Usignul Cl None DPolice QOlher;

'

Traliic Control:

D Clear D Rain

General Condilions: 0 C] Daylight Q Down/DuskFog l:]Dorl:

D Dorkw/ Slreel lights 0 Olher Slreel Surloce Gary D Wei 0 ice Q Muddy D Oily E] one '

Vehicle (RTA Veh Lights D On 0 oil: (Other Veh C] On O on)

Did you sound your horn? D Yes D No. Did Police issue cilolions at scene? U_Ves D No To Whom? Damage to RTA Vehide/Property: Apparent damage Io olher vehix:le/ property: .

Driver: Address: Phone No. Driv. Li<# Slate} Exp Dole Veh. Liclt Slolej # Persons in Veh. __ is atherveh insured? Yes__ No __ Ins. Co Polir Exp: Name of other Veh. Owner (il dilferenl From above): Es! Speed ol allser Veh. V\/hen lirsl Haliced: M_P.H. Al lime of Collision: M.P.H. Distance Traveled alter Collision? Feet

19 RTA Veh

Other Veh.

G Ffieslrian E r§d Object

~~~~

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‘Complete diagram below /01 ALL Vehicle and passenger accidents

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Draw an arrowhnyyng narih in lhis circle NOTE any damage an bus body

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label

ShowTruWicCon|ral EachStreet § [

DevicesAndlandrnorks I 1

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REGIONAL TRANSPORTATION AUTHORITY Ai:cIDeNT/lNcInENT/ INJURY

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Name of Empioyee: A Dale of ncIde_II Accident Employee

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0 O I I SuPskvIson’s INVESTIGATION REPORT or

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ACCIDENT/INCIDENT/INJURY _ _ Note: Print Iegibly in inl: or lype all applicable information an both sides prior to subrnilling.

Name of Ernplayee Involved; Date/Day/Time al occurrence: 5 Gé

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Location of Accident/Incident: Date/Time Occurrence was lirst Reported: S 29] / Z1 First Reported To: Z A bl SEA T01 61;

0 Passenger Accident D D |

l

3 Vehicle Acc/Inc. Employee Personal Accident/Iniury Arrest Made by P.D.lConslablel O Other (misc) Cl Passenger Incident 0 Employee Illness C] Police Report Filed - it

Was employee asked if He/She needed medical attention?

N Yes D No. If no, Give Reason EL '~. *’«‘~e ill:

Was Employee sent to authorized clinic/hospital lat medical examination or treatment? 0 Yes g No. Was employee sent to dinic For drug and alcohol screening ¢Va D No. Reason:

Your Signature: // 2nd Spvr. Signalure:

”

3

No Witnesslesl to accident: ’

N

Was Employee perlonning reg r work? es _/ C‘ .

'

Apparent nature of employee’: iniury: [J Had employee been instructed on proper jag procedures {including possible hazards]? mes D No.

Campbte this side for all accidents and incidents. (Far vehicle and/or passenger accidents - also complete reverse side ‘)

Describe accident/lncidenl completely fil needed, use additional paper): lL.“Hl:7_I2.I’(1/72‘..47 v/Z12 iaaujei .:z»7 z:5$ l3MA/V"/‘_‘~ /5*-w-2 A Sm-‘e?/c”.-'“«L

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Patsy Perez District Clerk

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CAUSE NO. 2014-CCV—60671-1

DONNIE DOYLE BROWN IN THE COUNTY COURT (D.O.B.: 10/06/1956)

VS. AT LAW # 1

CORPUS CHRISTI REGIONAL ¢@f@f0J¢09f0>f0J€@€0>i'4UJ1'09<'%

TRANSPORTATION AUTHORITY, MV CONTRACT TRANSPORTATION, INC., AND MV TRANSPORTATION, 1Nc., D/B/A THE B NUECES COUTNY, TEXAS AFFIDAVIT OF DONNIE DOYLE BROWN BEFORE ME, the undersigned official, on this day appeared Donnie Doyle Brown, who personally known to me, and first being duly sworn according to law upon his oath deposed and

said the following:

“My name is Donnie Doyle Brown. I am Over the age of 18 years and fully competent to make this Affidavit. The statements contained in this Affidavit are true and correct and based on

my personal knowledge.

I, Donnie Brown, had a mandatory appointment with MI-IMR on May 04, 2012 at

4:30PM because I had missed my previous appointment at the end of April. I had no money, at

the time, so I was given a bus token from “The Good Samaritan” Rescue Mission; I had made

my way to the bus stop while looking for work. This was to be my last bus transfer to ME-IMR. I

sat down to make sure I had all of my paperwork in order required for MHMR around 2:30PM. I

soon heard the bus approaching, looked at my watch, and realized he was a little early. I then

motioned and waved for him to stop and he did. I noticed by my watch, which I had learned to set to RTA’s time that the bus was exactly 5 minutes early and scrambled to gather up my paperwork. An acquaintance from The “Good Samaritan,” of which I had not seen or heard from

Page 1 of 2

for at least 2 weeks, suddenly shows up and was trying to converse with me but I really cou1dn’t

look up and pay attention because when I was organizing my papers I realized that I had

forgotten a key document and tried to remember where I had put it. By the time I was ready to

board the bus with my transfer ticket the bus was already pulling very slowly away so I walked

after the bus with the ticket in my left hand yelling and banging on the bus and I could hear and see the passengers screaming for the bus driver to stop the bus and he wouldn’t. The doors were

still opened so I attempted to board the bus with my left hand. Suddenly the doors closed. I

could not get free and was dragged until I tripped and was freed and fell under the rear wheels.

That’s all I remember about the accident. I must have gone into shock.

My lawyer has told me there are reports I was intoxicated at the time of the accident. I

was not and had not been drinking alcoholic beverages before the bus accident and I was not

intoxicated at the time of the accident.

SWORN TO and SUBSCRIBED before me by the said Donnie Doyle Brown, under my

~

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official hand and seal of office on this the day of October, 2014.

~

1

AMVRA VERA

otary Public. State of Texas State of Texas My Commission Exgives January 08. 2018

~~

Page2of2

icallelgcom

3.: .-:i4.i».is?i, Read more at call-c;r_corn

Audit: RTA should work on reducing accidents, preventing breakdowns, keeping buses cleaner Accidents, cleanliness among chief concerns By Rhiannon Meyers

/ /.

Friday, December 28. 2012

COl‘;iPUS CHRISTI —The Regional Transportation Authority should work on reducing accidents, preventing breakdowns and keeping buses cleaner, a recent audit found.

State law requires some public transportation agencies to undergo an audit every four years examining performance, including accidents, number of miles between road calls and the amount of tare collected versus total operations cost.

The RTA also asked auditors this time to review its maintenance department. They noted a number of concerns that prompted board members at a recent committee hearing to ask CEO Scott Neeley to take steps to improve the department. "This was a great report and feel l like things like this are good our agency because for

itsheds light on the improvements we need to make," board member Tony Elizondo said at a recent committee meeting. “I don't get heartbroken over being critiqued or criticized. see it as an opportunity to improve on the great things we have

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here."

Auditors reviewing data from 2008 to 2011 made myriad recommendations to improve the agency's safety and efficiency. The RTA will have a public hearing about the findings Jan. 9 before preparing a response, which will be sent to state officials.

_Accidents were among the top concerns noted by auditors. They reached their highest

, point in 2011 with 4.75 accidents per 100,000 miles, a numberthat includes both ~ preventable and non-preventable accidents, such as times when a bus is rear—ended by a car. Industry standard is two accidents per 100,000 miles, Neeley said.

— The RTA recorded about 60 accidents in 2011, ranging from serious, including one - time when a bus struck and killed a pedestrian, to minor, including times when drivers _e misjudged the height of curbs and the proximity of signs, poles and hydrants, scratching, denting and scraping buses, according to an RTA database of such incidents.

\ About half of the 2011 accidents were preventable, the RTA found. In at least 10 cases, RTA vehicles were rear-ended by other vehicles, according to the agency's 7 safety and security logs.

Neeley said RTA plans to address the increasing accident rate by conducting "ride checks,“ or ride-alongs with drivers to watch their driving behavior, and more intensive post—accident education sessions.

Auditors also recommended the RTA improve its tare recovery rate.

The RTA charges a base fare of 75 cents per trip, with discounts for seniors, people with disabilities and children. Revenue from the fare, which is low compared to other transit agencies, covered less than 7 percent of the cost to operate the bus system. Other agencies typically have a higher fare recovery rate of 10 to 15 percent, Neeley said.

The agency has no immediate plans to increase its a slow process that requires fare,

committee input. Neeley said the RTA has tried instead to keep costs in check by trimming services that are inefficient or poorly used.

"We're being frugal enough with our money that we don't have to pass that burden off

to our customers," he said.

While auditors found a well-staffed maintenance department performing regular preventive maintenance, good quality work and having few repeat mechanical tailures, they also found a number of concerns, including an outdated plan, a section of the shop that is cluttered and messy and a lack of maintenance training.

Board members have asked Neeley to take a close look at the maintenance department and provide updates on planned improvements.

"We need to get our maintenance department back to where it needs to be," board member Vangie Chapa said.

Auditors also suggested the agency do a better job cleaning the buses and supervisors do a betterjob inspecting the fleet to ensure is cleaned. The auditors found trash and it

litter had not been cleaned from buses; handrails, walls and NC ducts that were dirty;

extensive graffiti on seats and several windshields that were cracked, including on the drivers side.

Rosa Villarreal, the managing director of operations, said turnover is high among the seven-member crew that cleans the RTA's more than 70 buses each night.

They are required to have a commercial drivers license, but they make much less than bus drivers, who got a pay hike in the past year so the RTA could better compete with Eagle Ford Shale businesses paying top dollar for people with similar skills.

When auditors visited, the cleaning crew was down at least two people, she said.

AUDIT FINDINGS Recommendation: Focus on reducing accidents. '/

Response: The RTA’s safety program will be enhanced with “ride checks,” which are assessments of driver behavior, regularly scheduled training and post—accident education sessions.

Recommendation: Focus on increasing the fare recovery rate.

Response: The RTA will closely monitor fare recovery rates and regularly present information to directors.

Recommendation: Focus on increasing miles between road calls.

Response: The RTA will further develop a predictive maintenance program designed to reduce the severity of failures and prevent breakdowns from occurring while the vehicle is in service.

The ongoing replacement of older fleet also will improve the miles between road calls.

Recommendation: Develop cleaning procedures, including daily cleaning requirements. Shop supervisors and the maintenance director should inspect vehicles to ensure they are clean.

Response: The RTA has developed procedures, expectations and service standards for bus preservation and quality assurance inspections. These will be incorporated into the maintenance employee guidelines.

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Source: 2012 performance audit of the RTA

~ © 2014 Scripps Newspaper Group — Online