      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




   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
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.




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                                                 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

   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.

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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.



                                                    5
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



                                                   6
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


   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.”

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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

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Publish




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