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Suing the Government for Texas Road Construction Accidents

In Texas Department of Transportation v. Brown, the plaintiff was driving on Hwy 82, in an area that was a construction zone, when she crashed into an unmarked machine parked in the right-hand lane. Later, she would claim that the barricade drums that were put between the two lanes didn’t show which lane was closed.

She sued the contractors for the Texas Department of Transportation (Department) and others for negligence. The defendants designated the Department as the responsible third party. She then amended her suit to include the Department as a defendant. She argued that the Department’s governmental immunity was waived under the Texas Tort Claims Act (TTCA). The TTCA required pre-suit notice. Her petition didn’t claim to provide pre-suit notice, only that she had generally met all the prerequisites to file suit.

The Department filed a verified answer and claimed governmental immunity, alleging she hadn’t provided notice of her claim as required under Section 101.101(a) of the Texas Civil Practice and Remedies Code. The director of the relevant section of the Department swore that notice hadn’t been received. Later, the Department filed a plea to the jurisdiction, arguing there was no subject matter jurisdiction.

The plaintiff’s own affidavit in response didn’t address whether she’d given pre-suit notice, but it did point out some discrepancies between their discovery responses and their correspondence. A letter from the Attorney General providing an opinion noted that the Department did receive a notice of claim letter that alleged its negligence caused the motor vehicle accident. The letter stated that the Attorney General understood the notice to be in compliance with the TTCA.

The Department objected to the plaintiff’s evidence, arguing for the Attorney General’s opinion to be disregarded because she hadn’t shown it was related to her accident. The Department attached evidence to show that the Attorney General’s opinion was actually associated with a different accident.

The trial court denied the Department’s plea to the jurisdiction, and the Department appealed. It argued that since the plaintiff hadn’t given timely formal notice, and it didn’t have actual notice ahead of the suit, the court didn’t have jurisdiction under Texas Government Code Ann. § 311.034. The appellate court agreed.

It explained that the plaintiff carried the preliminary burden of alleging facts to show the court had jurisdiction. If the evidence shows a factual issue related to jurisdiction, the plea cannot be granted. However, if the evidence fails to show a factual issue, the plea is decided as a matter of law. It further explained that under the doctrine of sovereign immunity, unless the state consents to suit, the trial court doesn’t have subject matter jurisdiction. In order to invoke a waiver of sovereign immunity, a plaintiff in Texas must notify the governmental entity of her claim not later than six months after the date of the accident. The notice needs to describe the damage or injury, the time and place of the accident, and the accident. The goal of this requirement is to make sure the plaintiff gives prompt notice that allows a governmental entity to gather sufficient information to protect themselves against bogus claims, settle claims appropriately, and get ready for trial. In this case, there was no evidence that the plaintiff provided either formal written notice or actual notice. An accident report was considered insufficient to provide actual notice, and in this case, the accident report also stated that the accident happened because the plaintiff was drunk driving at night.

If you suffer losses after a car accident caused by road construction, the experienced San Antonio attorneys at Carabin Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.

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