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City of Houston v. Daniels12/6/2001
The City of Houston (City) appeals the trial court's denial of its motion for summary judgment. On appeal, the City claims its motion for summary judgment should have been granted because (1) appellee Victoria Daniels failed to give the City proper notice under the Texas Tort Claims Act or the City of Houston Charter, and (2) Daniels failed to demonstrate the City waived sovereign immunity. We affirm.
Facts
On November 30, 1996, Officer Tellez of the Houston Police Department was responding to a Priority Two dispatch for an incident involving domestic violence. While driving to his destination, Tellez collided with the rear of a Metropolitan Transit Authority (Metro) bus. The Metro bus, which was driven by Daniels, was stationary; passengers were boarding and exiting at a designated stop. After the impact, Tellez's car traveled across several lanes of traffic and a median before coming to a stop. Daniels filed suit against the City for injuries sustained in the accident.
The City filed a motion for summary judgment contending it is immune from suit because its employee, Officer Tellez, is entitled to official immunity. The City also claims that Daniels has waived any claim under the Texas Tort Claims Act by failing to give formal written notice of her claim against the city. Daniels contends the City had actual notice of Officer Tellez' tortious conduct. The trial court denied the City's motion.
Standard of Review
In reviewing the trial court's denial of a motion for summary judgment, we apply the same standard of review as we do for the grant of a summary judgment. See Ervin v. James, 874 S.W.2d 713, 715 (Tex. App.--Houston [14th Dist.] 1994, writ denied). The function of a summary judgment is the elimination of patently unmeritorious claims or untenable defenses. Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex.1952). For defendants, as movants, to prevail in the summary judgment, they must either disprove at least one necessary element of the plaintiff's theory of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. Peeler v. Hughes & Luce, 868 S.W.2d 823, 827 (Tex. App.--Dallas 1993), aff'd, 909 S.W.2d 494 (Tex.1995). When a defendant moves for summary judgment on an affirmative defense, like official immunity, the defendant must conclusively prove each element of the defense as a matter of law. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). We view the summary judgment proof in the light most favorable to the non-movant, and all doubts as to the existence of a genuine issue of material fact are resolved in the non-movant's favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985).
Notice of Claim
The Texas Tort Claims Act requires a claimant to provide a governmental unit with formal, written notice of a claim against it within six months of the incident giving rise to the claim. The formal notice requirement does not apply, however, 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. TEX. CIV. PRAC. & REM. CODE ยง 101.101. For a governmental entity to have actual notice, it must have knowledge of (1) a death or injury; (2) its alleged fault producing or contributing to the death or injury; and (3) the identity of the parties involved. Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995). The existence of actual notice is a question of fact. Dinh v. Harris County Hospital District, 896 S.W.2d 248, 253 (Tex. App.--Houston [14 th Dist.] 1995, writ dism'd w.o.j.). Notice can be impu
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