Reversed and Remanded and Memorandum Opinion filed April 22, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00384-CV

MELINA ORTIZ-GUEVARA, Appellant

V.

CITY OF HOUSTON, Appellee

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2011-28409

MEMORANDUM OPINION

A City of Houston employee, Officer Lemant Monroe, rear-ended Melina 

Ortiz-Guevara’s stopped car, causing her car to propel forward and strike another 

car. Another City of Houston employee, Officer S. Boone, investigated the 

incident and prepared an accident report. The accident report states that Officer 

Monroe “failed to control speed striking” Ortiz-Guevara, listing the sole factor or 

condition contributing to the accident as Officer Monroe’s “failure to control 
speed.” The report also indicates that the driver of the vehicle struck by OrtizGuevara said another vehicle in front of them had stopped suddenly.

Ortiz-Guevara testified by deposition that she told both officers that she was 

injured. In particular, she told Officer Boone “my neck and my back was hurting.” 

But Officer Boone’s report indicates she was not injured. The report indicates that 

Ortiz-Guevara’s car and Officer Monroe’s van were towed from the accident scene 

due to disabling damage, and the accident resulted in at least $1,000 of damage to 

any one person’s property. 

Ortiz-Guevara did not go to the hospital immediately after the accident, but 

she eventually sued the City and claimed that she suffered a herniated disc in her 

cervical region. The City filed a plea to the jurisdiction contending that it lacked 

notice of Ortiz-Guevara’s claim, which is a jurisdictional prerequisite to suit. The 

trial court granted the City’s plea, dismissing the suit. Ortiz-Guevara appealed.

The parties agree that Ortiz-Guevara did not provide the City formal notice 

of her claim within the 90 days required by the City’s charter or the six months 

required by the Texas Tort Claims Act (TTCA). See Tex. Civ. Prac. & Rem. Code 

Ann. § 101.101(a). However, formal notice is not required if the City had actual 

notice of (1) the City’s fault; (2) Ortiz-Guevara’s injury; and (3) the identity of the 

parties. See Tex. Dep’t of Crim. Justice v. Simons, 140 S.W.3d 338, 344 (Tex. 

2004); see also Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c). The parties 

dispute whether the City had actual notice of (1) the City’s fault and (2) OrtizGuevara’s injury.

We hold Ortiz-Guevara adduced some evidence that the City had actual 

notice of its fault and Ortiz-Guevara’s injury sufficient to overcome the City’s plea 

to the jurisdiction. Accordingly, we reverse the trial court’s judgment and remand 

for further proceedings.

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ACTUAL NOTICE UNDER THE TEXAS TORT CLAIMS ACT

In her sole issue on appeal, Ortiz-Guevara contends the trial court erred by 

granting the City’s plea to the jurisdiction because Ortiz-Guevara offered evidence 

raising a fact issue about whether the City received actual notice of her claim. The 

City responds that the evidence does not raise a fact issue about whether the City 

had adequate actual notice, namely, (1) subjective awareness of the City’s alleged 

fault; and (2) sufficient knowledge of Ortiz-Guevara’s injury. After reviewing the 

standard of review and applicable law, we address each contention in turn.

A. Standard of Review

The parties do not dispute the standard of review. We review a challenge to 

the trial court’s jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 

133 S.W.3d 217, 228 (Tex. 2004). Because the City challenges the existence of

jurisdictional facts, we consider relevant evidence when necessary to resolve 

jurisdictional issues. See id. at 227. If the jurisdictional challenge implicates the 

merits of Ortiz-Guevara’s case and the evidence creates a fact question, then the 

trial court’s decision to grant the City’s plea to the jurisdiction must be reversed. 

See id. at 227–28; see also City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 

2009) (“If that evidence creates a fact issue as to the jurisdictional issue, then it is 

for the fact-finder to decide.”).

To survive a plea to the jurisdiction, Ortiz-Guevara must “show that there is 

a disputed material fact regarding the jurisdictional issue.” Miranda, 133 S.W.3d 

at 228. We take as true all evidence favorable to Ortiz-Guevara and indulge every 

reasonable inference and resolve all doubts in her favor. Id. “[T]his standard 

generally mirrors that of a summary judgment.” Id.

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B. General Law Regarding Notice

The TTCA requires that a plaintiff give timely formal notice to a 

governmental unit that “reasonably describe[s]: (1) the damage or injury claimed; 

(2) the time and place of the incident; and (3) the incident.” Tex. Civ. Prac. & 

Rem. Code Ann. § 101.101(a). However, this notice provision does “not apply if 

the governmental unit has actual notice . . . that the claimant has received some 

injury.” Id. § 101.101(c). 

Actual notice requires that a governmental unit 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.” Tex. Dep’t of Crim. Justice v. Simons, 140 S.W.3d 338, 

344 (Tex. 2004) (quotation omitted). Actual notice is a fact question when the 

evidence is disputed but may be determined as a matter of law when the pertinent 

facts are undisputed. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 

324 S.W.3d 544, 549 (Tex. 2010); Simons, 140 S.W.3d at 348.

This appeal concerns the first two elements of actual notice.

C. Knowledge of the Alleged Fault

Actual notice of the alleged fault requires the governmental unit’s 

“subjective awareness of its fault, as ultimately alleged by the claimant, in 

producing or contributing to the claimed injury.” Simons, 140 S.W.3d at 347. “It

is not enough that a governmental unit should have investigated an incident as a 

prudent person would have, 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.” Id. at 347–48. Subjective awareness of fault

ensures that the governmental unit will have “the same incentive to gather 

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information that the statute is designed to provide.” Id. at 348. Subjective 

awareness may be proved by circumstantial evidence. Id. 

The City contends that we must affirm because a “police report is no more 

than a routine safety investigation and is insufficient to provide actual notice of a 

claim,” citing City of Dallas v. Carbajal, 324 S.W.3d 537 (Tex. 2010). In that 

case, the plaintiff sustained injuries after driving her vehicle onto an excavated 

road. Id. at 538. A police officer investigated the accident and filed a written 

report describing the accident, explaining that there were no barricades blocking 

the road and that the gap in the road “was not properly blocked.” Id. The Texas 

Supreme Court held in Carbajal that “the police report here is no more than a 

routine safety investigation, which is insufficient to provide actual notice.” Id. at 

539. 

The City misconstrues Carbajal. The court did not establish a bright-line

rule stating that a routine safety investigation will never provide a governmental 

unit with actual notice of its fault. The court held that the evidence was lacking in 

that case because the police report “did not even imply, let alone expressly state, 

that the City was at fault. . . It does not say who failed to erect or maintain the 

barricades.” Id. at 539. The court declined to speculate “whether the City would 

have had actual notice if the report had expressly stated that the City was at fault.” 

Id. at 539 n.1. The court, therefore, focused not on the purpose of the investigation

(routine safety), but rather on what facts the investigation revealed to the 

governmental unit. Thus, the fact that Officer Boone may have prepared his report 

as part of a “routine safety investigation” is not dispositive.

Here, the report indicates that Officer Monroe “failed to control speed.” The 

report lists the sole factor or condition contributing to the accident as Officer 

Monroe’s “failure to control speed.” Thus, the report does even more than imply 

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Officer Monroe’s fault—it expressly assigns fault to him. Further, unlike the 

City’s possible involvement in not erecting a barricade, Officer Monroe was an 

active participant in producing or contributing to Ortiz-Guevara’s injury. See 

Arancibia, 324 S.W.3d at 550 (suggesting that actual notice of fault is established 

“when the sole instrumentality of harm is the government itself”). Thus, Carbajal

does not control the disposition of this case.1

The City suggests there is evidence that “Officer Monroe could not avoid 

colliding with the car in front of him”; and “the police report here does not give the 

City subjective awareness of its fault because the notations on the report indicate 

that the lead car’s sudden stop played a role in the accident and caused Officer 

Monroe to bump into Ortiz-Guevara’s car.” The City quotes from Benavente v. 

Granger, 312 S.W.3d 745 (Tex. App.—Houston [1st Dist.] 2009, no pet.): “Under 

common law, the mere occurrence of a rear-end collision does not establish 

negligence as a matter of law.” Id. at 749.

However, the City appears to confuse “fault” with complete and exclusive 

liability. The Texas Supreme Court clarified that “[f]ault, as it pertains to actual 

notice, is not synonymous with liability; rather, it implies responsibility for the 

injury claimed.” Arancibia, 324 S.W.3d at 550. Thus, although the City might 

believe its employee was not negligent, that belief does not preclude the City’s 

1 The City relies on several post-Carbajal decisions from the El Paso Court of Appeals, 

but those cases similarly relied on the fact that the police investigations did not identify the 

governmental units or their employees as producing or contributing to the plaintiffs’ injuries. 

See Rojas v. Cnty. of El Paso, 408 S.W.3d 535, 541 (Tex. App.—El Paso 2013, no pet.) 

(investigating officer’s report noted that a motor vehicle accident resulted because a stop sign 

had been knocked down, but there was no evidence that the County knew of the sign’s condition 

before the accident, and the report did not state that the County had any duties regarding the stop 

sign or that the plaintiffs’ injuries resulted from the County’s failures regarding such duties); City 

of El Paso v. Hernandez, 342 S.W.3d 154, 160 (Tex. App.—El Paso 2011, no pet.) (mere fact 

that police officers investigated an accident, where a car struck a pedestrian at a school crosswalk 

when the school zone lights were not active, did not give City notice that it was at fault).

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actual knowledge of its fault. See id. at 549–50 (actual notice established despite 

the governmental unit’s internal investigation revealing no breach of the standard 

of care). No court has held that fault must be exclusively the governmental unit’s. 

Rather, the plaintiff must present some evidence of the City’s knowledge that it 

produced or contributed to the injury. See, e.g., Simons, 140 S.W.3d at 347.

The City overstates Ortiz-Guevara’s burden. She need not prove the City

had knowledge of its fault as a matter of law because this case involved a rear-end 

collision. She must only raise a fact issue to avoid having her suit dismissed. “A 

question of fact as to the existence of negligence is usually presented when one 

motor vehicle overtakes and strikes one in front of it going in the same direction.”

Hardberger v. O'Dell, 544 S.W.2d 522, 524 (Tex. Civ. App.—Austin 1976, no 

writ); accord Renshaw v. Countess, 289 S.W.2d 621, 624 (Tex. Civ. App.—Fort 

Worth 1956, no writ); see also Granger, 312 S.W.3d at 749 (“With regard to rearend collisions, standards of ordinary care cannot be fixed with any degree of 

certainty but must be left in large measure to the trier of the facts.” (quotation 

omitted)); Pac. Fin. Corp. v. Rucker, 392 S.W.2d 554, 558 (Tex. Civ. App.—

Houston 1965, no writ) (“Whether an automobile being struck from the rear raises 

an issue of negligence or establishes it as a matter of law depends on all the facts 

and circumstances of the particular case.”). Here, it is undisputed the City knew its 

employee rear-ended Ortiz-Guevara.

Further, Ortiz-Guevara does not rely on the mere occurrence of a rear-end 

collision as proof of the City’s knowledge of its fault. She notes that Officer 

Boone assigned fault to Officer Monroe in the police report. In a prior case, this 

court held there was a fact issue about actual notice when a police officer rearended a stationary bus, even though the investigating officer concluded that the 

police officer was not at fault. See City of Houston v. Daniels, 66 S.W.3d 420 

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(Tex. App.—Houston [14th Dist.] 2001, no pet.). The police officer was driving 

sixty miles per hour where the speed limit was thirty-five miles per hour, and a van 

pulled out of a parking lot in front of the officer. Id. at 424. The officer swerved 

to avoid hitting the van but nonetheless rear-ended a stationary bus, inside which 

the plaintiff was passenger. Id. at 423–24. Although the investigating officer 

opined in his report that the accident was caused exclusively by the driver of the 

van, this court held that the plaintiff presented a fact issue about actual notice

because the police officer was speeding at the time he struck the bus. Id. at 424. 

Unlike in Daniels, the police report here specifically assigns at least some of the 

fault to Officer Monroe: a factor or condition contributing to the accident was 

Officer Monroe’s “failure to control speed.” Thus, Ortiz-Guevara presented even 

more evidence of the City’s knowledge of its fault than the plaintiff did in Daniels.

Accordingly, Ortiz-Guevara presented a fact issue on the issue of the City’s 

subjective awareness of its fault in producing or contributing to her claimed injury.

D. Knowledge of Injury

The City contends that “Ortiz-Guevara failed to ‘reasonably describe[e]’ her 

injuries in order to place the City on notice that she was injured,” citing this court’s 

approval of a jury instruction requiring the plaintiff to prove that the governmental 

unit received information “reasonably describing” the injury. See Kamani v. Port 

of Houston Auth., 725 S.W.2d 336, 339 (Tex. App.—Houston [14th Dist.] 1987, no 

writ) (citing Collier v. City of Tex. City, 598 S.W.2d 356, 358 (Tex. Civ. App.—

Houston [14th Dist.] 1980, no writ)). The City notes that Ortiz-Guevara did not 

immediately go to a hospital and was not bleeding or manifesting outward 

indications of physical distress. The City contends that her reports of “shaking” 

and feeling “tight” after the accident were vague and indefinite, and the City notes 

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that Officer Boone indicated on the accident report that Ortiz-Guevara was not 

injured.

However, the City ignores Ortiz-Guevara’s deposition testimony that she 

informed Officer Boone “my neck and my back was hurting.” Although this 

evidence conflicts with Officer Boone’s report, we must take as true all evidence 

favorable to Ortiz-Guevara and resolve all doubts in her favor. See Miranda, 133 

S.W.3d at 228.

As to whether Ortiz-Guevera’s testimony raises a fact issue, we explained in 

Collier, “We do not interpret the notice provision as requiring a claimant to 

describe in full medical detail the nature and extent of his injury.” 598 S.W.2d at 

358. We conclude that the City’s knowledge of Ortiz-Guevara’s back and neck 

pain following a rear-end collision would have provided the City “the same 

incentive to gather information that the statute is designed to provide.” Simons, 

140 S.W.3d at 347. Thus, the purpose of the actual notice provision was satisfied 

by Ortiz-Guevara’s complaint of neck and back pain to the accident investigator. 

See Richardson v. Allen, 1997 WL 242812, at *3 (Tex. App.—Dallas May 13, 

1997, no writ) (not designated for publication) (holding there was a fact issue on 

actual notice when the plaintiff informed the governmental employee at the scene 

of a car accident that “she did not feel good and that her head hurt” and later 

informed another employee that she sustained personal injuries but did not know 

the full extent of her injuries) (citing Collier, 598 S.W.2d at 358); see also City of 

Wichita Falls v. Jenkins, 307 S.W.3d 854, 860 (Tex. App.—Fort Worth 2010, pet. 

denied) (holding that the plaintiffs’ formal notice to the City after a rear-end 

collision with a police officer was sufficient when it alleged only “personal injuries 

and other damages” without further specificity; also holding that the City had 

sufficient actual notice of a claim because the accident report indicated there was 

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over $1,000 worth of vehicle damage, even though the plaintiffs did not appear to 

be injured and drove away from the accident).

Ortiz-Guevara raised a fact issue about whether the City had actual 

subjective awareness of her injury, and we sustain her sole issue on appeal.

CONCLUSION

Having sustained Ortiz-Guevara’s sole issue, we reverse the trial court’s 

judgment and remand for proceedings consistent with this opinion.

/s/ Sharon McCally

Justice

Panel consists of Justices McCally, Busby, and Donovan.

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