Texas Supreme Court reaffirms Cathey

The Texas Supreme Court on Friday issued an opinion in Worsdale v. City of Killeen, and in doing so reaffirmed the notice rule it had established in Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995).

In Worsdale, a motorcyclist collided with a large dirt mound blocking an unlit asphalt country road. At issue is whether the City had "actual notice" of the injuries, obviating the need for the plaintiffs to give notice of the claim. The court, in a 7-2 opinion written by Justice Guzman, found that the City did have actual notice of the injuries, but declined the plaintiffs urging to overrule Cathey.

The concurrence, written by Justice Boyd, urged that the statute did not have any language supporting the Cathey standard, which requires "subjective awareness" of "alleged fault."

The opinion of the court states that the City immediately investigated whether it was responsible for the road (it was), removed the dirt pile, and placed permanent road closure signs and barricades. It stated that subsequent remedial measures were not admissible to show liability "but admissible for other purposes, including to prove ownership, control, and notice." The citation for this tenet is Rule 407 of the Texas Rules of Evidence, which states that subsequent remedial measures are admissible to show "ownership, control, or the feasibility of precautionary measures."

The issue, as I see it, is whether a city will have a disincentive to implement subsequent remedial measures so that it may preserve its argument that it did not have notice of the claim. This is the same argument that underlies the evidentiary rule in the first place--that a defendant will not take simple remedial measures that make future injuries less likely because of fear that it will be held liable. The City's brief to the Supreme Court makes this argument, but the opinion buries it in a footnote that inaccurately quotes the rule.

The opinion can be found here: http://www.txcourts.gov/media/1444229/180329.pdf .

The concurring opinion can be found here: http://www.txcourts.gov/media/1444230/180329c.pdf