rolling-plains-management-corporation-of-baylor-cottle-foard-hardeman ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00161-CV
ROLLING PLAINS MANAGEMENT APPELLANT
CORPORATION OF BAYLOR,
COTTLE, FOARD, HARDEMAN,
AND WILBARGER COUNTIES
D/B/A SHARP LINES RURAL
PUBLIC TRANSPORTATION
V.
PATRICIA HOBBS, APPELLEE
ADMINISTRATRIX OF THE
ESTATE OF PATTY BLACKBURN,
DECEASED
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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION1
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See Tex. R. App. P. 47.4.
I. INTRODUCTION
This is an interlocutory appeal from a trial court order denying a plea to the
jurisdiction that was filed by Appellant Rolling Plains Management Corporation of
Baylor, Cottle, Foard, Hardeman, and Wilbarger Counties d/b/a Sharp Lines
Rural Public Transportation (Rolling Plains). The sole issue we address in this
appeal is whether Rolling Plains possessed actual notice “that the claimant, has
received some injury” as required under section 101.101(c) of the Texas Tort
Claims Act (TTCA). Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c) (West
2011). The undisputed facts presented to the trial court establish that Rolling
Plains possessed actual notice and knowledge that Patty Blackburn—a
passenger on a mini-bus operated by Rolling Plains—had received some injury
when the mini-bus rear-ended a vehicle in front of it, and according to the bus
driver, Blackburn went “flying to the front of the bus,” landed on the floor of the
bus, did not respond when asked if she was okay, and was transported to the
emergency room by ambulance. Accordingly, we will affirm the trial court’s order
denying Appellant’s plea to the jurisdiction.
II. PROCEDURAL BACKGROUND
Rolling Plains is a rural public transportation provider, providing
transportation to low income individuals in five counties of north central Texas;
Rolling Plains qualifies, statutorily, as a governmental unit.2 Appellee Patricia
2
It is undisputed that Rolling Plains is a governmental unit. Rolling Plains’s
plea to the jurisdiction and attached documents establish that it meets the
2
Hobbs, Administratrix of the Estate of Patty Blackburn, deceased, filed suit
against Rolling Plains for personal injuries Blackburn suffered as a passenger on
a mini-bus operated by Rolling Plains when it rear-ended another vehicle.3
Rolling Plains filed a plea to the jurisdiction, pointing out that Blackburn had not
provided it written notice under section 101.101(a) of the TTCA and claiming that
it lacked actual notice of any injury to Blackburn.4 Following an evidentiary
hearing, the trial court denied Rolling Plains’s plea to the jurisdiction. Rolling
Plains perfected this appeal, raising a single issue challenging the denial of its
plea to the jurisdiction.
definition of a rural public transportation provider and thus falls within the
definition of a rural transit district. See Tex. Transp. Code Ann. § 458.001(2), (3)
(West Supp. 2013) (defining “rural public transportation provider” and “rural
transit district”). A “rural transit district” is a political subdivision of the state, and
a political subdivision of the state is a governmental unit entitled to immunity
unless a claim falls within the limited waiver of immunity provided by the TTCA.
See id. § 458.001(3) (defining “rural transit district”); Tex. Civ. Prac. & Rem.
Code Ann. § 101.001(3)(B) (West Supp. 2013) (defining “governmental unit” for
purposes of application of the TTCA as including a political subdivision), §
101.021 (West 2011) (setting forth three specific areas of liability for a
governmental unit).
3
Blackburn died sometime later of causes unrelated to the accident.
4
Rolling Plains conceded in the trial court and concedes on appeal that it
possessed actual notice of the accident, of Rolling Plains’s alleged fault in the
accident, and of the parties that were involved in the accident. Rolling Plains’s
counsel explained at the plea to the jurisdiction hearing,
I’m not here to argue that we didn’t know who was involved. We
knew that. We knew there was an accident. We know the basic
construct of the evidence; it was a rear-end collision. That’s not
what’s at issue, Judge. What’s in issue here is the matter of injury,
and did we cause an injury as a result of this accident.
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III. FACTUAL BACKGROUND
The facts are undisputed. On November 22, 2010, Blackburn was a
passenger on a mini-bus operated by Rolling Plains. Blackburn had some
physical problems and was wearing a back brace. The mini-bus rear-ended a
vehicle. As a result of the impact, Blackburn was thrown from her seat and
landed in the aisle on the floor near the front of the bus. Sharon McClanahan,
the driver of the bus, asked another Rolling Plains driver, who had arrived on the
scene just after the accident, to call 911.
Immediately after the accident, McClanahan also called Sharon Bowman,
the lead dispatcher for Rolling Plains and the person at Rolling Plains in charge
of investigating accidents. Bowman asked whether anyone was injured, and
McClanahan explained that Blackburn had come out of her seat and was lying on
the floor at the front of the bus. Bowman told McClanahan to call an ambulance.
Bowman testified at the hearing on the plea to the jurisdiction:
Q. Why would you tell her [McClanahan] to call an ambulance?
A. To verify that there was no injuries. I mean, we just -- for their
safety, just -- we wanted to make sure she was okay.
Q. Who did you want to make sure was okay?
A. Mrs. Blackburn.
Q. Now, why would you want to make sure she was okay at this
moment -- at that moment?
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A. Well, because -- because we are concerned about our clients,
and we just want to make sure that they’re okay, because of the
accident.
Q. Did you think she may have been harmed because of the
accident?
....
A. We just wanted to make sure she was okay.
Portions of McClanahan’s deposition were read into the record at the
hearing on the plea to the jurisdiction, including the following testimony:
Q. Why did you ask [another Rolling Plains driver] to call 911?
A. Because I wanted to make sure [Blackburn] was okay.
Q. Did you think she was injured?
A. Well, she came from her seat -- she didn’t have her seat
belt on, so she came from her seat up to the front of the bus, and
was laying on the floorboard.
Q. Did you have reason -- did you feel like you observed that
Ms. Blackburn was injured?
A. She had already had some health issues, and she was
wearing a back brace, and so I wanted to make sure that she was
okay from that. I didn’t want it to cause further problems.
As Blackburn lay on the floor of the bus, McClanahan asked Blackburn if she was
okay; although Blackburn appeared conscious, she did not respond. When
Blackburn was asked why she was not wearing her seatbelt, she said that she
was trying to get money out of her pocket for lunch. An ambulance arrived on
the scene, and paramedics loaded Blackburn into the ambulance and
transported her to the hospital emergency room.
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Bowman conducted an immediate follow-up investigation of this accident.
After Blackburn was transported to the emergency room, Bowman called the
hospital and learned that Blackburn would be discharged from the hospital later
that day. Bowman claimed that the hospital did not mention to her that Blackburn
had sustained any injuries. A Rolling Plains driver took Blackburn home from the
hospital after she was discharged. Bowman talked to that driver and claimed that
the driver did not mention to her that Blackburn had sustained any injuries.
Finally, Bowman called Blackburn a few days after the accident and claimed that
Blackburn did not mention to her that Blackburn had sustained any injuries.
Rolling Plains’s accident file on the collision in question includes a Texas
Peace Officer’s Crash Report prepared by the City of Wichita Falls Police
Department. The police report places fault for the accident on McClanahan. The
police report also indicates that Blackburn was taken by ambulance to the
hospital. A Rolling Plains vehicle/property damage report contained in Rolling
Plains’s accident file sets forth McClanahan’s handwritten description of the
accident; in it, she admits rear-ending the vehicle in front of her when it stopped
“all of a sudden” and describes that Blackburn went “flying to the front” of the bus
upon impact of the vehicles. Bowman conceded at the hearing on the plea to the
jurisdiction that “flying to the front” of the bus was different than, and more than,
simply falling to the front of the bus. Rolling Plains’s accident file also includes
an estimate for approximately $3,000 of repairs to the Rolling Plains mini-bus and
an email to Shawn Lowery, an insurance adjuster or insurance company agent
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for Rolling Plains, concerning the collision; handwritten across the middle bottom
half of the printed email is the name “Patty Blackburn” along with Blackburn’s
telephone number.
IV. STANDARD OF REVIEW
The TTCA’s notice provision is a jurisdictional requirement. See Tex.
Gov’t Code Ann. § 311.034 (West 2013). Thus, lack of notice may be raised by a
governmental unit in a plea to the jurisdiction. See, e.g., Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004) (explaining that
sovereign immunity from suit defeats a trial court’s subject matter jurisdiction and
thus is properly asserted in a plea to the jurisdiction). Whether a court has
subject matter jurisdiction is a question of law. State v. Holland, 221 S.W.3d 639,
643 (Tex. 2007). Accordingly, we review a trial court’s ruling on a plea to the
jurisdiction de novo. Holland, 221 S.W.3d at 642; Miranda, 133 S.W.3d at 226.
Whether undisputed evidence of jurisdictional facts establishes a trial court’s
jurisdiction is also a question of law. Miranda, 133 S.W.3d at 225–26. Applying
this standard of review, we analyze the trial court’s ruling denying Rolling Plains’s
plea to the jurisdiction.
V. ANALYSIS
In its sole issue, Rolling Plains contends that it did not have actual notice
sufficient to comply with the notice requirement of the TTCA. Rolling Plains
argues that although it was aware of the accident and the parties involved and
that it may have allegedly been at fault, it did not have the requisite actual notice
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of an injury to Blackburn that was caused or contributed to by some fault on the
part of Rolling Plains.
Section 101.101 of the TTCA is titled, “Notice,” and provides,
(a) A governmental unit is entitled to receive notice of a claim
against it under this chapter not later than six months after the day
that the 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.
....
(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.
Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a), (c). Blackburn did not provide
Rolling Plains with written notice of her claim under subsection (a). Id.
§ 101.101(a). Consequently, the issue is whether Rolling Plains possessed
actual notice that Blackburn had “received some injury.” Id. § 101.101(c).
Rolling Plains contends that it did not have actual, subjective awareness
that Blackburn had suffered any injury in the rear-end collision because no one
told Rolling Plains that Blackburn had suffered any injury. Rolling Plains does
not dispute its knowledge of any of the above facts; Rolling Plains instead argues
that knowledge of these facts is not actual knowledge of an injury to Blackburn
and that to satisfy the notice requirement of section 101.101(c) of the TTCA, it
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must have had knowledge of a specific injury resulting from the accident. See
Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). Citing Texas Department of
Criminal Justice v. Simons, Rolling Plains argues that the notice required under
section 101.101(c) is “the very same notice that it was entitled to receive under
[section] 101.101(a).” See 140 S.W.3d 338, 347 (Tex. 2004). Rolling Plains
contends that it must have possessed actual notice that Blackburn sustained a
specific injury and that it had “no knowledge whatsoever of any injury sustained
by Ms. Blackburn.”
The lack-of-actual-notice cases relied upon by Rolling Plains pivot on the
governmental unit’s lack of actual knowledge of its alleged fault, not on the
governmental unit’s lack of actual notice of the alleged injury. See Simons, 140
S.W.3d at 347 (explaining that evidence of notice under section 101.101(c) of the
TTCA must show that governmental unit had “actual, subjective awareness of its
fault in the matter”); Cathey, 900 S.W.2d at 341–42 (explaining that evidence of
notice under section 101.101(c) of the TTCA did not raise fact issue that hospital
had “actual notice of any alleged culpability on its part producing or contributing
to any injury” of plaintiffs). Here, there is no question that Rolling Plains
possessed actual, subjective awareness of its fault; a Rolling Plains driver rear-
ended a vehicle, and the police report of the accident places fault on the Rolling
Plains driver. Thus, the actual notice cases cited by Rolling Plains are only
tangentially applicable here.
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The notice requirements of section 101.101(c) of the TTCA do not require
actual knowledge by the governmental unit of each and every specific personal
injury suffered by a claimant or of a specific type of injury suffered by a claimant.
See Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c) (requiring “actual notice that
. . . the claimant has received some injury”) (emphasis added); see also City of
Wichita Falls v. Jenkins, 307 S.W.3d 854, 856 (Tex. App.—Fort Worth 2010, pet.
denied) (rejecting contention that written notice of claim failed to “describe the
nature and extent of their injuries” suffered by plaintiffs when the written notice of
claim stated that plaintiffs had sustained “personal injuries and other damages”);
Tarrant Cnty. Hosp. Dist. v. Ray, 712 S.W.2d 271, 274 (Tex. App.—Fort Worth
1986, writ ref’d n.r.e.) (pointing out that court’s charge defined “actual notice” as
“that knowledge or information which a county governmental unit-hospital
received by some means reasonably describing an injury of Tyeshia Hall and the
time, manner[,] and place of the incident from which it arose” and further stated
that “[a]ctual notice does not require a description of the nature and extent of the
injury in full medical detail”). As summed up in Appellee’s brief:
In the present case, Bowman, Rolling Plains Management’s accident
investigator, knew about the rear[-]end collision and Blackburn’s
physical condition immediately after the crash. McClanahan testified
Blackburn remained motionless and did not say anything after the
crash. Bowman knew Blackburn had been thrown to the front of the
bus where she remained unresponsive[,] and emergency medical
treatment was required and requested by Rolling Plains
Management employees. Bowman knew Blackburn was taken by
the first responders to the emergency room where she received
further medical treatment. Bowman also knew exactly how long
Blackburn was admitted to the hospital and when she was
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discharged. . . . Rolling Plains Management had subjective
knowledge its employee rear-ended another vehicle[,] and as a
result[,] Blackburn needed and received emergency medical
treatment. . . . [Rolling Plains] is demanding more than it is entitled
to under the notice provision of the Act by asking this Court to create
a requirement for notice of a specific medical diagnosis.
Because the undisputed facts before the trial court established that
Rolling Plains—specifically Bowman—possessed actual knowledge of all
of these facts: that an accident occurred; that Rolling Plains caused the
accident; that Blackburn flew to the front of the bus from the impact of the
vehicles; that Blackburn was lying on the floor of the bus and did not
respond when asked whether she was okay; that Rolling Plains—
specifically Bowman—told the Rolling Plains driver to call 911 for an
ambulance for Blackburn; and that Rolling Plains knew Blackburn was
taken to and treated in the emergency room following the accident, we
hold that Rolling Plains possessed actual knowledge and subjective notice
that its fault produced or contributed to some injury to Blackburn. See Tex.
Civ. Prac. & Rem. Code Ann. § 101.101(c); see also City of San Antonio v.
Johnson, 140 S.W.3d 350, 351 (Tex. 2004) (explaining that actual notice
under the TTCA must be based on facts actually known by the
governmental unit, not on facts the governmental entity could have
learned).
We overrule Rolling Plains’s sole issue.
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VI. CONCLUSION
Having overruled Rolling Plains’s sole issue, we affirm the trial court’s
order denying Rolling Plains’s plea to the jurisdiction.
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
DELIVERED: March 20, 2014
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