Armstead v. Memorial Hosp.

Decision Date23 February 1995
Docket NumberNo. 94CA0420,94CA0420
Citation892 P.2d 450
PartiesGenevieve ARMSTEAD, Plaintiff-Appellant, v. MEMORIAL HOSPITAL and the City of Colorado Springs, Defendants-Appellees. . III
CourtColorado Court of Appeals

Turman & Associates, Robert Lloyd Turman, Colorado Springs, for plaintiff-appellant.

Retherford, Mullen, Johnson & Bruce, Neil C. Bruce, J. Stephen Mullen, Colorado Springs, for defendants-appellees.

Opinion by Judge TAUBMAN.

In this negligence action to recover damages for personal injuries allegedly sustained in a slip and fall accident, plaintiff, Genevieve Armstead, appeals from the summary judgment entered in favor of defendants, Memorial Hospital and the City of Colorado Springs. We affirm.

The complaint alleged that, in December 1991, plaintiff slipped and fell on a patch of ice in the Memorial Hospital parking lot. It further alleged that Memorial Hospital was a public hospital owned and operated by the City of Colorado Springs and that plaintiff had complied with the notice requirements of the Governmental Immunity Act (the Act). According to the complaint, plaintiff had sustained various injuries as a result of defendants' negligent failure to maintain the parking lot free from dangerous icy conditions and to warn of those conditions.

Defendants filed an answer admitting some of plaintiff's allegations but denying negligence and that plaintiff had complied with the notification requirements of the Act. Defendants similarly asserted, as an affirmative defense, plaintiff's failure to comply with the Act's notice provisions. Defendants also filed a motion for summary judgment asserting that jurisdiction was lacking because they had not received proper, timely notice of plaintiff's claim.

In support of their motion, defendants filed affidavits from officials in the City Clerk's and City Attorney's offices declaring that no notice of plaintiff's claim had been received. Defendants also filed an affidavit from the hospital's risk manager stating that he had received no written notice of claim until more than a year after plaintiff's injury.

Plaintiff filed a response to the motion asserting that defendants should be estopped from denying timely notice because their representatives had investigated plaintiff's claim within 60 days after her injury. Attached to the response was a copy of a February 1992 letter from plaintiff's counsel to the hospital's risk manager transmitting plaintiff's record-release authorization and requesting copies of reports, as well as related correspondence.

Ultimately, the trial court granted the motion and entered judgment for defendants. A motion for reconsideration premised on additional affidavits proved unavailing, and this appeal followed.


Relying on C.R.C.P. 56, plaintiff contends that judgment for defendants was precluded by the existence of a genuine issue of material fact concerning her compliance with the Act's notice provisions. We disagree.

Contrary to plaintiff's assertion, the issue of compliance with the Act's notice provisions is one of subject matter jurisdiction; therefore, the proper procedure for determining such jurisdictional facts is governed by C.R.C.P. 12(b)(1) and not C.R.C.P. 56. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993). Further, in acting as fact finder, the trial court may consider any competent evidence pertaining to the notice issue without applying the requirement of C.R.C.P. 56 that there be no dispute in material facts. Cline v. Rabson, 862 P.2d 1035 (Colo.App.1993).

Accordingly, even if the documents submitted by the parties did present a factual issue, the trial court should properly act as fact finder to determine the jurisdictional issue on its merits.

Finally, under C.R.C.P. 12(b)(1), the plaintiff has the burden to prove jurisdiction, and appellate review of a trial court's determination of this threshold factual issue is to be conducted under the highly deferential, clearly erroneous standard. Trinity Broadcasting of Denver, Inc. v. City of Westminster, supra. Thus, under Trinity, even where a trial court has applied summary judgment procedures to determine the notice issue, if a reviewing court is satisfied that all the relevant evidence was before the trial court, it may apply C.R.C.P. 12(b)(1) to the record without the necessity of a remand. See Capra v. Tucker, 857 P.2d 1346 (Colo.App.1993).


Plaintiff also contends that the trial court erred in determining that she had failed to comply with the mandatory notice requirements of the Act. In support of this contention, she argues that only "substantial compliance" with the service of notice provisions is required and that the documents before the court established substantial compliance. In support of the judgment, defendants maintain that strict compliance with the service of notice provisions is necessary and that plaintiff failed to meet that standard. We agree with defendants.

Relying on Woodsmall v. Regional Transportation District, 800 P.2d 63 (Colo.1990) and Blue v. Boss, 781 P.2d 128 (Colo.App.1989), plaintiff contends that substantial compliance, rather than strict compliance with the 180-day notice requirement of § 24-10-109(1), C.R.S. (1994 Cum.Supp.) is required. We disagree.

Pursuant to § 24-10-109(1):

Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment ... shall file a written notice as provided in this section within one hundred eighty days after the date of the discovery of the injury.... Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action.

As pertinent here, the notice of claim must be filed with the public entity's governing body or attorney. Section 24-10-109(3), C.R.S. (1988 Repl.Vol. 10A); Aetna Casualty & Surety Co. v. Denver School District No. 1, 787 P.2d 206 (Colo.App.1989). Further, § 24-10-109(3) states: "[S]uch notice shall be effective upon mailing by registered mail or upon personal service."

In Woodsmall, the supreme court determined that only "substantial compliance" is required with respect to the notice given by claimants pursuant to § 24-10-109(1). Subsequently, however, the supreme court limited its holding in Woodsmall to compliance with the contents of the notice, holding that "when a party fails to strictly comply [sic] with the 180-day notice requirement, the party's action must be dismissed." East Lakewood Sanitation District v. District Court, 842 P.2d 233, 236 (Colo.1992). There the notice to the sanitation district had been sent after the 180-day statutory period had elapsed.

Further, in Woodsmall, supra, the court held that § 24-10-109(3) does not prohibit service of proper notice by regular mail. However, under the statute, service by registered mail or personal service was "intended as a method of conclusively establishing that the effective date of service, for purposes of the 180-day requirement, is the date of the registered mailing." Woodsmall v. Regional Transportation District, supra, at 69.

In Blue v. Boss, supra, and two more recent cases, divisions of this court have approved "filing" of notices of claim either by regular mail or in a manner which did not strictly comply with the requirements of § 24-10-109.

Thus, in Blue v. Boss, supra, a division of this court rejected the argument that a notice of claim sent by regular mail was statutorily insufficient, because it was undisputed that the notice had been timely mailed and received. More recently, in Lopez v. Regional Transportation District, --- P.2d ---- (Colo.App. No. 93CA1790, November 17, 1994), another division of this court held that a properly addressed notice of claim sent by regular mail within the 180-day time limit is effective upon mailing, even if it is not received by the public entity's governing body or its counsel until after the 180-days have expired.

In another recent case, Lafitte v. State Highway Department, 885 P.2d 338 (Colo.App.1994), a division of this court held that a properly addressed notice of claim mailed within 180 days after plaintiff discovered her injury by certified mail, but with insufficient postage, was timely, where the notice was remailed by certified mail but eventually received by the Attorney General after the 180-day limit.

Here, the trial court determined from affidavits that neither defendant's governing body nor its attorney had received a timely-mailed claim notice in compliance with § 24-10-109.

After judgment was entered, plaintiffs' counsel submitted affidavits stating that timely notices of claim had been mailed, and the record reflects that those...

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4 cases
  • Barham v. Scalia, 95CA1789
    • United States
    • Colorado Court of Appeals
    • November 7, 1996
    ...of discovery of the injury. See East Lakewood Sanitation District v. District Court, 842 P.2d 233 (Colo.1992); Armstead v. Memorial Hospital, 892 P.2d 450 (Colo.App.1995). If the claim is against the state or an employee thereof, the notice is to be filed with the attorney general. If the c......
  • Bryant v. City of Lafayette
    • United States
    • Colorado Court of Appeals
    • February 6, 1997
    ...C.R.C.P. 12(b)(1). See Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993); Armstead v. Memorial Hospital, 892 P.2d 450 (Colo.App.1995). Section 24-10-109(1), by its express terms, provides that there must be a "discovery" of the injury before the 180-day p......
  • Nyland v. Brock
    • United States
    • Colorado Court of Appeals
    • June 27, 1996
    ...or she has been wrongfully injured. East Lakewood Sanitation District v. District Court, 842 P.2d 233 (Colo.1992); Armstead v. Memorial Hospital, 892 P.2d 450 (Colo.App.1995). The mandatory notice must include, to the extent the claimant is reasonably able to do so, the information listed i......
  • Miller v. Campbell, 97CA0166
    • United States
    • Colorado Court of Appeals
    • April 16, 1998
    ...clearly erroneous standard. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993); Armstead v. Memorial Hospital, 892 P.2d 450 (Colo.App.1995). The trial court's order, however, "must be sufficiently particularized to permit informed review by the court of ap......
1 books & journal articles
  • Recent Developments in Governmental Immunity: Post-trinity Broadcasting
    • United States
    • Colorado Bar Association Colorado Lawyer No. 25-6, June 1996
    • Invalid date
    ...Shandy, supra, note 11 at 322. 18. Lafitte, supra, note 15 at 341. 19. See Copra, supra, note 15 at 1347-48; Armistead v. Memorial Hosp., 892 P.2d 450, 452 (Colo.App. 1995); DiPaolo v. Boulder Valley School Dist., 902 P.2d 439, 441 (Colo.App. 1995); Sanchez v. School Dist. 9-R, 902 P.2d 450......

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