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TEXAS SUPREME COURT THROWS OUT WOMAN'S CASE

Olivia Carbajal was injured when she drove her car "onto an excavated road." The Dallas Police Department investigated, and the officer noted in the accident report that the street "was not properly blocked." Ms. Carbajal filed suit without providing "formal notice" required by the Texas Tort Claims Act, relying instead upon the "actual notice" provision of the Act. In the recent opinion of City of Dallas v. Carbajal, ___ S.W.3d ___ (Tex. 2010)(5/7/10), the Texas Supreme Court ruled that the notice provision of the Tort Claims Act is jurisdictional, and that police report did not provide the city with actual notice of the claim, so it reversed and rendered a judgment that she cannot pursue her claim.
"When a claimant fails to timely provide a governmental unit with formal notice of a claim, . . . the Texas Tort Claims Act requires the governmental unit to have 'actual notice that . . . the claimant has received some injury,' id. 101.101(c). In Texas Department of Criminal Justice v. Simons, we clarified that merely investigating an accident does not provide a governmental unit with actual notice--that is, with subjective awareness of its fault. Because the police report here was at most an initial response to the accident, we hold that the governmental unit, the City of Dallas, lacked actual notice. The provision of notice is a jurisdictional requirement in all suits against a governmental unit."
Governmental entities only "have actual notice when they have 'knowledge of (1) a death, injury, or property damage; (2) the governmental unit's alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved.'" Regarding the second requirement, actual notice means "the same notice to which it is entitled by section 101.101(a). . . . It is not enough that a governmental unit should have investigated an incident . . . , or that it did investigate, perhaps as part of routine safety procedures, or that it should have known from the investigation it conducted that it might have been at fault. If a governmental unit is not subjectively aware of its fault, it does not have the same incentive to gather information that the statute is designed to provide, even when it would not be unreasonable to believe that the governmental unit was at fault." Here, the report "did not provide the City with subjective awareness of fault. . . ." It was "no more than a routine safety investigation. . . ." "When a police report does not indicate that the governmental unit was at fault, the governmental unit has little, if any, incentive to investigate its potential liability because it is unaware that liability is even at issue."

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