
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-01-00478-CV



City of San Angelo, Appellant

v.


Terrell "Terry" Smith, Appellee






FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT

NO. B-00-0533-C, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING






	The City of San Angelo brings this accelerated interlocutory appeal challenging the
district court's denial of its plea to the jurisdiction.  In one issue, the City contends that, because
appellee Terrell "Terry" Smith failed to comply with the Texas Tort Claims Act's notice provisions,
it did not waive its governmental immunity and the district court lacks subject matter jurisdiction. 
Holding that the City had actual notice of its alleged liability, we affirm the district court's order.


BACKGROUND FACTS

	Smith, a water treatment equipment salesman, went to the City's water treatment
plant to inspect equipment he previously sold the City.  The plant's superintendent, Donald Johnston,
and a sales representative from another company, accompanied Smith on his inspection.  While
attempting to inspect the equipment, Smith fell into a flocculator tank full of water, injuring his ankle
and shoulder.  Johnston, who was walking in front of Smith, did not see Smith fall, but turned
around after hearing a splash.  Johnston and the sales representative pulled Smith out of the tank and
arranged for his transportation to the hospital.  While at the hospital, Smith asked his brother-in-law,
Revis Tyler, to go back to the plant, retrieve his car, and take pictures of the tank and the area around
it.  The City denied Tyler access to the site.  Later that day, Johnston contacted Jim Burrows, claims
manager for the City, and reported that Smith had fallen in the tank and possibly injured his ankle. 
Within a day of Smith's accident, the City began constructing a rail around the tank.
	Smith filed suit against the City, claiming in his third amended original petition that
his fall resulted from bolts protruding from the walkway around the tank and that the City was
negligent for failing to construct rails around the flocculator tank where he fell.  The City filed a plea
to the jurisdiction arguing that, because Smith failed to allege facts sufficient to establish jurisdiction
under the Texas Tort Claims Act and San Angelo city ordinances, it was immune from suit and the
district court lacked subject matter jurisdiction.  The district court denied the City's plea.  The City
then filed this accelerated interlocutory appeal.  See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(8) (West Supp. 2002). (1)

STANDARD OF REVIEW
	A plea to the jurisdiction challenges a district court's subject matter jurisdiction.
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).  Accordingly, we review a district
court's plea to the jurisdiction ruling de novo.  Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928
(Tex. 1998).  In order to prevail, the party asserting the plea to the jurisdiction must show that, even
if all the allegations in the plaintiff's pleadings are true, there is an incurable jurisdictional defect
apparent from the face of the pleadings, rendering it impossible for the plaintiff's petition to confer
jurisdiction on the trial court.  Bybee v. Fireman's Fund Ins. Co., 331 S.W.2d 910, 914 (Tex. 1960). 
If the face of the petition does not affirmatively demonstrate a lack of jurisdiction, the district court
must liberally construe the plaintiff's allegations in favor of jurisdiction.  Texas Ass'n of Bus. v.
Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Peek v. Equipment Serv. Co., 779 S.W.2d
802, 804 (Tex. 1989).
	Because the nature of the issues raised in the plea determines the scope of review, a
court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may
consider evidence and must do so when necessary to resolve the jurisdictional issue raised.  Bland
Indep. Sch. Dist., 34 S.W.3d at 554; Mayhew, 964 S.W.2d at 928.  We consider the plaintiff's factual
allegations made in good faith to determine whether the district court properly exercised jurisdiction. 
Brannon v. Pacific Employers Ins. Co., 224 S.W.2d 466, 469 (Tex. 1949).  Thus, unless the
defendant pleads and proves that the plaintiff's allegations were made fraudulently to confer
jurisdiction, we accept these allegations as true.  Continental Coffee Prods. Co. v. Cazarez, 937
S.W.2d 444, 449 (Tex. 1996); Peek, 779 S.W.2d at 804.  We must therefore determine whether
Smith pleaded facts sufficient to allege that the district court had jurisdiction over his claims against
the City.

DISCUSSION
	To be amenable to suit under the Texas Tort Claims Act, a governmental entity must
receive notice of a claim against it.  Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (West 1997).  If
a party seeking to impose liability fails to comply with the formal notice requirements, suit may still
be proper so long as the governmental entity has actual notice of death, injury, or property damage
arising from the plaintiff's claims.  Id. § 101.101(c).  The parties agree that Smith did not comply
with the Act's formal notice requirements but dispute whether the City had actual notice of Smith's
claims.  The City contends that it did not have the requisite notice because Smith did not notify the
City that it was at fault until he filed suit almost two years after his injury.  Thus, the City argues
Smith's claim is barred by the notice provisions of the Texas Tort Claims Act. (2) See id. §§ 101.001-.109 (West 1997 & Supp. 2002).  Smith responds that, because the plant's superintendent witnessed
the accident, called the plant's claims manager, and erected a rail around the tank shortly after the
incident, the City had actual notice of the incident resulting in his injuries and its potential liability;
his claim is therefore proper under the Act.  See id. § 101.101(c) (West 1997).  We begin our review,
then, by determining whether the pleadings and evidence are sufficient to allege that the City
received actual notice of Smith's injuries and its potential liability. (3)
	Actual notice contemplates more than mere awareness of death, injury, or property
damage.  See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).  Actual notice requires knowledge
of (1) a death, injury, or property damage; (2) fault producing or contributing to the death, injury,
or property damage; and (3) the identity of the parties involved.  Id.  The notice requirement's
purpose is to insure prompt reporting of claims to facilitate the governmental entity's ability to gather
information necessary to guard against unfounded claims, settle claims, and prepare for trial. 
Cathey, 900 S.W.2d at 341; City of Texarkana v. Nard, 575 S.W.2d 648, 653 (Tex. App.--Tyler
1978, writ ref'd n.r.e.) (citing City of Houston v. Torres, 621 S.W.2d 588, 591 (Tex. 1981)). 
However, nothing in the Act requires the governmental entity to be absolutely certain of the injury's
nature and cause or that it know of an injured party's intention to file suit.  See Tarrant County Hosp.
Dist. v. Ray, 712 S.W.2d 271, 274 (Tex. App.--Fort Worth 1986, writ ref'd n.r.e.) (affirming district
court's instruction that actual notice "does not require a description of the nature and extent of the
injury in full medical detail").  Actual notice is imputed to a governmental entity if it, or one of its
agents, is aware of facts and circumstances surrounding an accident sufficient to put them on inquiry
that, if pursued, would reveal its alleged or possible fault producing or contributing to the injury. 
Wright v. Texas Dep't of Criminal Justice, No. 14-99-10204-CV, 2001 Tex. App. LEXIS 7043, at
*5 (Tex. App.--Houston [14th Dist.] Oct. 18, 2001, no pet.) (to be published); Dallas-Fort Worth
Int'l Airport Bd. v. Ryan, 52 S.W.3d 426, 428-29 (Tex. App.--Fort Worth 2001, no pet.).
	Smith contends that his fall in the presence of the plant superintendent and the events
occurring after his fall were sufficient to provide the City with actual notice of his injuries and its
potential liability.  Although typically a question of fact for the jury, the existence of actual notice
may be determined as a matter of law where the evidence is insufficient to raise a fact issue.  See
Cathey, 900 S.W.2d at 341; Alvarado v. City of Lubbock, 685 S.W.2d 646, 648-49 (Tex. 1985); 
Lorig v. City of Mission, 629 S.W.2d 699, 701 (Tex. 1982).  Cases imputing actual notice turn on
whether the governmental entity had actual notice of its potential culpability.  Governmental entities
have actual notice to the extent that a prudent entity could ascertain its potential liability stemming
from an incident, either by conducting a further investigation or because of its obvious role in
contributing to the incident.  See, e.g., Rosales v. Brazoria County, 764 S.W.2d 342, 345 (Tex.
App.--Texarkana 1989, no writ) (dispatching investigators to an accident scene involving county
law enforcement officer resulted in actual notice); City of Galveston v. Shu, 607 S.W.2d 942, 946
(Tex. App.--Houston [1st Dist.] 1980, no writ) (responding to "officer down" call provided
sufficient circumstantial evidence to provide city with notice); Nard, 575 S.W.2d at 653
(investigating accident caused by malfunctioning traffic signal sufficient to afford city actual notice).
	It is well recognized that mere awareness of an accident is often insufficient to
constitute actual notice.  See, e.g., Gaskin v. Titus County Hosp. Dist., 978 S.W.2d 178, 183 (Tex.
App.--Texarkana 1998, pet. denied); Gonzalez v. El Paso Hosp. Dist., 940 S.W.2d 793, 797 (Tex.
App.--El Paso 1997, no writ); Reynosa v. Bexar County Hosp. Dist., 943 S.W.2d 74, 78 (Tex.
App.--San Antonio 1997, writ denied); Wesela v. University of Tex. Med. Branch, 899 S.W.2d 292,
295 (Tex. App.--Houston [14th Dist.] 1995, no writ).  An incident or occurrence must sufficiently
disrupt the governmental entity so that it can be fairly said that the governmental entity would be
likely to discover its alleged contribution to the accident.  For example, in Cathey, the supreme court
held that notes in a patient's medical chart, indicating a thirty-minute delay in performing a Cesarean
section, were insufficient to constitute actual notice of medical negligence.  900 S.W.2d at 341-42. 
The court explained that, even if the hospital were aware of such information, as a matter of law, the
information failed to convey the hospital's potential culpability.  Id. at 342; see also Gonzalez, 940
S.W.2d at 796-97; Wesela, 899 S.W.2d at 295.  But see Gaskin, 978 S.W.2d at 181 ("When a health
care provider should have known from its records that its negligence was more likely than not the
cause of plaintiff's injuries, a fact issue will have been raised on the actual notice issue to thwart
summary judgment."); Dinh v. Harris County Hosp. Dist., 896 S.W.2d 248, 253 (Tex.
App.--Houston [1st Dist.] 1995, writ dism'd w.o.j.) (holding hospital records created fact issue
precluding summary judgment).  Although merely filing an accident report will not always constitute
actual notice, an incident that triggers a separate investigation and report will likely impute notice
to a governmental entity. (4) See Benavides v. Dallas-Fort Worth Int'l Airport Bd., 946 S.W.2d 576,
579 (Tex. App.--Fort Worth 1997, no pet.); McDonald v. State, 936 S.W.2d 734, 739 (Tex.
App.--Waco 1997, no writ); Davis v. Mathis, 846 S.W.2d 84, 88 (Tex. App.--Dallas 1992, no writ);
Reese v. Texas Dep't of Highways & Pub. Transp., 831 S.W.2d 529, 530 (Tex. App.--Tyler 1992,
writ denied).
	In the instant case, the City concedes that its "employees were aware that [Smith] fell
in the tank and injured his ankle," but argues that such "information was not sufficient to convey
actual knowledge to the City that the City was" in any way potentially culpable.  The alleged facts
do not support such a contention.  It is undisputed that the City knew Smith sustained injuries as a
result of falling in the tank.  While this alone may be insufficient to constitute actual notice, when
considered in conjunction with the other facts of this case, it is difficult not to conclude the City was
aware of its potential for liability.  The accident itself occurred in the presence of the plant
superintendent, who was aware that Smith's injuries required hospital treatment.  Shortly after Smith
fell, the superintendent called the plant's risk manager and informed him of Smith's accident. 
Within one day of Smith's fall, the City initiated construction of a guardrail around the tank.  Also,
Smith alleges that he sought to take photographs of the accident scene but was denied access.  We
conclude that, taken together, these facts were sufficient to impute to the City knowledge of an
injury, its potential liability, and the parties' identities.  See Cathey, 900 S.W.2d at 341.  Considering
the pleadings and the evidence, we hold the City had actual notice of Smith's injuries and its
potential liability.  We overrule the City's sole issue.

CONCLUSION
	Having determined that the City had actual notice of Smith's injuries and its potential
liability, we are satisfied the district court has subject matter jurisdiction.  Accordingly, we affirm
its order denying the City's plea to the jurisdiction.


  
					Jan P. Patterson, Justice
Before Justices Kidd, Yeakel and Patterson
Affirmed
Filed:   February 7, 2002
Publish
1.      	A party may appeal from an interlocutory order of a district court that grants or denies a plea
to the jurisdiction by a governmental entity.  Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8)
(West Supp. 2002).
2.      	Because the city ordinance pertaining to notice requirements for governmental liability is
substantially the same as the provision in the Texas Tort Claims Act, the disposition of the City's
issue concerning notice under the Act is dispositive of its claims under the city ordinance.
3.      	Because we conclude that the City had actual notice, we need not address whether the notice
requirement is jurisdictional.
4.      	The City concedes "that if there had been an individual who had a duty to gather facts, who
actually knew that Plaintiff's injury was caused by tripping on the bolts, that [the City] would have
actual notice."
