Besette v. Enderlin School Dist. No. 22

• Decision Date: 24 January 1980
• Docket Number: D,No. 9680,No. 22,22,9680
• Citation: 7 A.L.R.4th 1047,288 N.W.2d 67
• Parties: Donald BESETTE, Individually and as next friend on behalf of Christine Besette, Plaintiff and Appellant, v. ENDERLIN SCHOOL DISTRICTefendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 67

288 N.W.2d 67

7 A.L.R.4th 1047

Donald BESETTE, Individually and as next friend on behalf of Christine Besette, Plaintiff and Appellant, v. ENDERLIN SCHOOL DISTRICT No. 22, Defendant and Appellee.

Civ. No. 9680.

Supreme Court of North Dakota.

Jan. 24, 1980.

Rehearing Denied Feb. 14, 1980.

Tenneson, Serkland, Lundberg, Erickson, Leclerc & Marcil, Fargo, and Stetson, Jones & Streich, Lisbon, for plaintiff and appellant; appearances by Wayne P. Jones, Lisbon and Jack G. Marcil, Fargo; argued by Mr. Marcil.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for defendant and appellee; argued by Carlton J. Hunke, Fargo.

ERICKSTAD, Chief Justice.

This is an appeal by Donald Besette, individually and as next friend on behalf of Christine Besette, from the order of the Ransom County District Court granting summary judgment to Enderlin School District No. 22 and dismissing Besette's complaint for failure to file a claim within 90 days against the school district under the provisions of Subsection 1, Section 4, Chapter 295, 1975 North Dakota Session Laws (hereinafter Subsection 1). We affirm in part, reverse in part, and remand for further proceedings.

On April 20, 1976, Christine Besette sustained injuries when she fell off a slide while playing on the school grounds at Alice, North Dakota, during a class recess. At the time of this incident Christine was six years old and a student in the first grade. Connie Kracht, a teacher's aide employed by the school district, was supervising the playground at the time of this incident, and she saw Christine fall off the slide. Mrs. Kracht could see that Christine's arm was "hanging" and concluded that it was probably broken. She assisted Christine into the school building and together with two other teachers placed a towel sling on the arm and contacted Christine's mother. Mrs. Bueling, an employee of the school district, then took Christine to the doctor in Enderlin.

According to the affidavit of Wayne P. Jones, one of Besette's attorneys in this case, Mr. Ron Reierson, the principal of the Enderlin School District, contacted Christine's mother by telephone about the status of Christine's injury while Christine was an inpatient at a Fargo Hospital. During their conversation Mr. Reierson advised Christine's mother that the school district would be paying part of the cost of the hospital and doctor bills. Within 90 days of the incident the Besette's presented medical bills incurred as a result of Christine's injury to Mr. Reierson, including a diagnosis signed by a medical doctor, for submission to the school district's group accident and health insurance carrier.

Douglas R. Oglesby, superintendent of the Enderlin School District, was also informed within 90 days of the injury that a student had fallen from a slide and had possibly suffered a broken arm.

Besette filed this action for damages against the school district on October 12, 1977, and on that same day also gave notice of claim to the school district. The school district moved for summary judgment on the ground that Besette had failed to file a claim within 90 days as required by Subsection 1. Subsections 1 and 2 of Section 4, Chapter 295, 1975 North Dakota Session Laws provide as follows: ¹

"Section 4. NOTICE STATUTE OF LIMITATIONS.

1. Except as otherwise provided, any claim against a political subdivision for injuries alleged to have arisen under the provisions of this Act shall be filed, within ninety days after the alleged occurrence of such injury, in the office of the county auditor. Such claim shall be signed and verified by the claimant and shall describe the time, place, cause, and extent of the damage or injury, shall contain an abstract of the facts upon which the claim is based, and shall specify the amount of damages claimed therefor. If it shall appear by the affidavit of a reputable physician that the injured person was rendered, by the injury complained of, mentally incapable of making the claim within the time specified in this section, the claim may be filed, if the claimant survives, within ninety days after the claimant becomes competent to make the same. The affidavit of the physician shall be prima facie evidence of mental incapacity, and may be controverted on the trial of an action for such damages. If the injured person shall die within ninety days after the happening of the injury, or before he shall become mentally competent to make the claim, the claim may be made within ninety days after the death of the injured person by any person having knowledge of the facts, and the person making such claim shall set forth therein specifically the facts relating to the injury of which he has personal knowledge and shall verify such facts positively. The facts of which the person making the claim has no personal knowledge shall be verified to the best of his knowledge, information, and belief. Notice of such claim shall also be given by the claimant to the political subdivision concerned and to the attorney general within ten days of filing such claim with the county auditor.

2. An action brought under this Act must be commenced within three years after the cause of action has accrued." (Emphasis added.)

The district court granted the school district's motion for summary judgment and dismissed Besette's action for failure to file a claim within 90 days. Besette now appeals to this Court from the decision of the district court and raises the following three issues:

1. Whether or not actual notice satisfies the claim filing requirement of Subsection 1;

2. Whether the claim filing requirement of Subsection 1 is mandatory or directory;

3. Whether or not a minor must comply with the claim filing requirement of Subsection 1.

Besette does not dispute the fact that no written claim was filed with the county auditor within 90 days from Christine's incident. Besette does assert, however, that the school district had actual notice of the incident, and he contends that the legislative purpose of Chapter 295, to inform political subdivisions of a potential liability in order that the matter may be promptly investigated, was accomplished by the school district's actual notice of the incident. Besette asserts that under such circumstances an action should not be dismissed for a technical failure to file a written claim within 90 days under Subsection 1. The school district asserts the contrary position that actual notice of an incident does not constitute the filing of a claim and that failure to file a verified claim including the items of information specifically required by Subsection 1, within 90 days, precludes the right to bring an action against the political subdivision involved.

With regard to this issue the overwhelming majority view is that actual notice of an incident does not satisfy a statutory requirement for presenting a written notice or claim to a governmental body and that the failure to present the required written notice or claim precludes the right to commence an action against the governmental body involved. Batchelder v. Haxby, 337 N.E.2d 887 (Ind.App.1975); Shearer v. Perry Community Sch. Dist., 236 N.W.2d 688 (Iowa 1975); Scarborough v. Granite School District, 531 P.2d 480 (Utah 1975); Schaefer v. Mayor and Council of City of Athens, 120 Ga.App. 301, 170 S.E.2d 339 (1969); Cochran v. City of Sumter, 242 S.C. 382, 131 S.E.2d 153 (1963); Stuart v. East Valley Consolidated Sch. Dist. No. 361, 61 Wash.2d 571, 379 P.2d 369 (1963); Allen v. Los Angeles City Board of Education, 173 Cal.App.2d 126, 343 P.2d 170 (Ct.App.1959); See Annot., 65 A.L.R.2d 1278, 1297 (1959).

The courts have generally followed one or both of the following two rationales in support of the majority position: (1) that the right to sue a political subdivision is solely a statutory right which requires strict compliance with any legislative prerequisites; and (2) that the express statutory requirement of a "written" notice or claim is not satisfied by anything less than presentment of such written notice or claim.

Only two jurisdictions, Minnesota and New York, have held that actual notice of an incident may satisfy a statutory requirement for presenting a written notice or claim to a governmental body. Kossak v. Stalling, 277 N.W.2d 30 (Minn.1979); Kelly v. City of Rochester, 304 Minn. 328, 231 N.W.2d 275 (1975); Matey v. Bethlehem Central School Dist., Delmar, 89 Misc.2d 390, 391 N.Y.S.2d 357 (Sup.Ct.1977).

The New York decisions are not particularly relevant, however, because the New York statute requiring notice of claim within 90 days includes a provision, unlike Chapter 295, 1975 North Dakota Session Laws, expressly allowing the court, in its discretion, to extend the time for serving a notice of claim under certain circumstances including those in which the public body "acquired actual knowledge of the essential facts constituting the claim . . . ." Matey v. Bethlehem Central School Dist., Delmar, 89 Misc.2d 390, 391 N.Y.S.2d 357, 359 (Sup.Ct.1977).

The applicable Minnesota statute requires that a written notice of claim against a municipality shall be presented within 180 days of the alleged injury, although during the period relevant in Kelly the statute required that such notice be given within 30 days. ² In Kelly a minor sustained injuries in a diving accident at a pool owned and operated by the city of Rochester. Although a claim for damages was not presented to the city within the statutorily required 30-day period one of the lifeguards present at the time of the incident, who was employed by the city, prepared a report of the incident and filed it with the head of the recreation department. The injured claimant asserted that the actual notice of the incident acquired by the municipal employees satisfied the statutory notice requirement. The Minnesota Supreme Court agreed with that assertion and held that actual notice of a possible claim was sufficient to meet the requirements of...