Recent Texas Cases of Interest to Cities

Note: Included cases are from September 11, 2017 through October 10, 2017.

Tort Claims Act: City of San Antonio v. Mendoza, No. 04-17-00168-CV, 2017 WL 4014617 (Tex. App.―San Antonio Sept. 13, 2017) (mem. op.). This is a Texas Tort Claims Act (TTCA) case involving the alleged negligent operation or use of a motor vehicle. The San Antonio Court of Appeals affirmed the trial court’s denial of the city’s plea to the jurisdiction.

Officer Gonzales, an on-duty San Antonio City Park Police Officer rear-ended a van driven by Carlos Mendoza. Gonzales’s supervisor, Fidencio Herrera, arrived at the scene to investigate and spoke to Gonzales and Mendoza. Herrera prepared investigative reports concerning the accident. Over a year later, Mendoza sued under the TTCA and alleged the city was provided actual notice of its fault in the accident. The city filed a plea to the jurisdiction which was denied. The city appealed.

The sole issue on appeal was whether the city had actual notice that Mendoza was injured as a result of the accident. It was undisputed the reports satisfied all other requirements of the actual notice provisions. Mendoza did not request medical attention at the scene. To establish knowledge of an injury, it is not necessary that the governmental unit be absolutely certain of the nature and extent of the injury. At the scene, Gonzales asked Mendoza if he was “ok” and Mendoza responded, “I got a slight pain” and began rubbing his back and stretching down. Gonzales did not reference the comment in his reports. Neither did Herrera. The city argued either Gonzales did not hear Mendoza or interpreted them to mean he was not injured. However, the court held, under the standard of review, it must presume the facts which support the trial court order, which was a denial. The city next argued Mendoza’s statements were “too vague and indefinite” to provide the city with actual notice of his alleged injuries. However, Mendoza did more than simply state he had a slight pain; he rubbed his back and stretched downward to stretch his back. As a result, there was evidence to support the trial court’s implied finding that the city had knowledge of Mendoza’s injury, requiring a denial of the plea.*

Tort Claims Act: City of Dallas v. Papierski, No. 05-17-00157-CV, 2017 WL 4349174 (Tex. App.—Dallas Oct. 2, 2017) (mem. op.). This is a Texas Tort Claims Act (TTCA) case and interlocutory appeal from the denial of the city’s plea to the jurisdiction. The Dallas Court of Appeals reversed and rendered in favor of the city.

The Dallas Convention Center hosted a cheerleading competition where Leslie Papierski attended with her daughter. While walking down a ramp in the arena, Papierski slipped and fell on a small puddle of water. At approximately the same time and location, another person slipped and fell while walking up the ramp. The incidents were reported to the convention center. The reports stated, “building was undergoing water penetration repairs; however, no penetration had ever occurred previously in this area before.” A subsequent search of incident reports revealed no reports of past roof leaks or injuries in the area. Papierski sued under a premise defect theory and the city filed a plea to the jurisdiction. The trial court denied the plea and the city appealed.

The Fifth District Court of Appeals first held objections to hearsay, best evidence, self-serving statements, and unsubstantiated opinions are considered defects in form which require a formal ruling from the judge. Since the plaintiff did not obtain a ruling, those objections to the city’s evidence are waived. Additionally, the affidavits challenged state the affiants are “personally acquainted” with the facts through convention center operations and procedures, which meets the personal knowledge requirement. Next, under invitee status which requires actual knowledge for liability, such knowledge on the part of a governmental entity requires knowledge that the dangerous condition existed at the time of the accident. Awareness of a potential problem is not actual knowledge.  The city established it did an exhaustive search for records of prior incidents of leakage in that location and were unable to locate any. Simply because the facility was having roof repairs due to leaks in other halls or areas does not mean the city had knowledge a leak created a dangerous condition at this specific location. No repair was occurring over the accident ramp. Additionally, even though some cases hold a condition which exists for a long enough period of time can attribute liability, no evidence exists in the record indicating how long the water was on the ramp. As a result, no fact question exists as to knowledge and the plea should have been granted.*

Tort Claims Act: City of Midland v. Bunch, No. 11-16-00276-CV, 2017 WL 4440276 (Tex. App.—Eastland Sept. 29, 2017) (mem. op.). This is a Texas Tort Claims Act/Recreational Use case where the Eastland Court of Appeals reversed in part and affirmed in part a trial court order denying the city’s plea to the jurisdiction.

Bunch alleges he paid for entry to the Washington Aquatic Center swimming pool run by the city. After he sat down on a bench, the bench broke causing him to fall backwards to the ground, sustaining injuries. Bunch sued and alleged the city knew the bench needed to be replaced and did not warn him it was rusted. He sued for premise defects and gross negligence asserting he was simply sitting on a bench to watch his son and was not engaged in recreation. The city filed a plea to the jurisdiction which the trial court denied. The city appealed.

Under the recreational use statute “if a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises.” Tex. Civ. Prac. & Rem. Code § 75.002(f). The court went through various dictionary definitions examining this subsection and determined Bunch entered the premises and was engaged in “recreation” at the time of his injury. He did not plead he was “spectating” nor did he plead he was parenting. So he did not plead a proper claim for ordinary negligence. However, he did amend his pleadings and properly allege gross negligence. He alleged that the city was “actually, subjectively aware of the risk involved” due to the rusted bench it knew needed to be replaced  “but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others, which constitutes malice.” As a result, the plea should have been granted to the ordinary negligence claims but was properly denied as to the gross negligence claims.*

*Case summaries taken largely from the work of the Law Offices of Ryan Henry, PLLC, and reprinted with permission from Ryan Henry.  To sign up for the firm’s blog, go to www.rshlawfirm.com.

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