Bell v. Kansas City, Kansas, Housing Authority

• Decision Date: 19 November 1999
• Docket Number: No. 81,588.,81,588.
• Citation: 992 P.2d 1233,268 Kan. 208
• Parties: PATSY BELL, Appellant, v. KANSAS CITY, KANSAS, HOUSING AUTHORITY, Appellee.
• Court: Kansas Supreme Court

268 Kan. 208

992 P.2d 1233

PATSY BELL, Appellant, v. KANSAS CITY, KANSAS, HOUSING AUTHORITY, Appellee.

No. 81,588.

Supreme Court of Kansas.

Opinion filed November 19, 1999.

Christopher L. Heigele, of Law Offices of G. Spencer Miller, L.L.C., of Gladstone, Missouri, argued the cause and G. Spencer Miller, of the same firm, of Gladstone, Missouri, was with him on the briefs for appellant.

William F. High, of Blackwell Sanders Peper Martin LLP, of Overland Park, argued the cause, and Linda S. Skaggs, of the same firm, was with him on the brief for appellee.

The opinion of the court was delivered by

LOCKETT, J.:

Plaintiff appeals the dismissal with prejudice of her civil tort action against the Kansas City, Kansas, Housing Authority (Housing Authority) for failure to comply with the notice requirements of K.S.A. 12-105b(d). Appeal was filed in the Kansas Court of Appeals. The case was transferred to this court pursuant to K.S.A. 20-3018(c).

Subject to exceptions stated in the Kansas Tort Claims Act, each governmental entity is liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state. K.S.A. 75-6103.

The present definition of "municipality" in the Cities and Municipalities Act, K.S.A. 12-101 et seq., encompasses all political subunits with the power to create indebtedness and make payments independent of the parent unit. K.S.A. 12-105a(a) provides, in part:

"`Municipality' means and includes county, township, city, school district of whatever name or nature, community junior college, municipal university, drainage district, cemetery district, fire district, and other political subdivision or taxing unit, and including their boards, bureaus, commissions, committees and other agencies, such as, but not limited to, library board, park board, recreation commission, hospital board of trustees having power to create indebtedness and make payment of the same independently of the parent unit."

The Housing Authority is an agency of the City of Kansas City (City), created pursuant to the provisions of the Development Credit Corporations, Housing Laws Act (Housing Laws), K.S.A. 17-2328 et seq. The Housing Laws provide the authority for a municipality, defined as "any city or county," to create housing authorities for the purpose of creating safe, sanitary dwellings available at rents which persons of low income can afford. See K.S.A. 17-2338(a); K.S.A. 17-2339(a), (o).

The City and the Housing Authority each have statutory authority to create indebtedness, sue, and be sued. Therefore, under the Cities and Municipalities Act, both the City and the Housing Authority are "municipalities."

K.S.A. 12-105b(d), the statute that provides for payment of tort claims, states:

"(d) Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed with the clerk or governing body of the municipality and shall contain the following: (1) The name and address of the claimant and the name and address of the claimant's attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested. In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim." (Emphasis added.)

The purpose of the statutory notice requirement is to sufficiently advise the proper municipality (Housing Authority) of the time and place of the injury and give the municipality an opportunity to ascertain the character and extent of the injury sustained. See Bradford v. Mahan, 219 Kan. 450, 457, 548 P.2d 1223 (1976); Tucking v. Board of Jefferson County Comm'rs, 14 Kan. App.2d 442, 448, 796 P.2d 1055 (1990) (quoting Holmes v. Kansas City, 101 Kan. 785, 786, 168 Pac. 1110 [1917]).

On May 15, 1996, Patsy Bell was injured when the elevator in the Housing Authority apartment building where she rented an apartment malfunctioned. On some date prior to August 29, 1996, Bell made a claim for damages to the Housing Authority. It is unknown whether the claim was an oral or written claim, who made the claim, or to whom the claim was made. On August 29, 1996, the Housing Authority's insurance carrier denied Bell's claim by letter. The insurance carrier's letter stated:

"We have submitted our completed investigation to our client for review and after a careful review of all of the facts, our client has determined that there is no legal responsibility on the part of Kansas City, Kansas Housing Authority for the injuries you sustained in this accident.

"Under these circumstances, we must respectfully decline payment of your claim.

"Thank you for your past cooperation."

On November 18, 1997, Bell's attorney, in an attempt to notify the Housing Authority of Bell's tort claim pursuant to the Kansas Tort Claims Act, sent a letter to the city clerk of the City, notifying the City that on May 15, 1996, Bell, a resident of an apartment complex owned and operated by the Housing Authority, had been injured when she attempted to use the elevator in the apartment building. Bell's letter informed the City of the injuries that Bell had suffered and stated that Bell had incurred medical bills in excess of $1,000. Bell requested compensation in excess of $10,000. A draft of a petition that she would file in accordance with the Kansas Tort Claims Act was attached to the letter.

The City made no response to Bell or her attorney. There is an affidavit in the record signed by Thomas Stibal, Executive Director and Secretary of the Housing Authority, stating that the Housing Authority was not notified by the City of Bell's written claim.

On April 20, 1998, Bell filed a petition in the district court for damages against the Housing Authority. The petition alleged that Bell was injured as she attempted to use the elevator in the apartment building where she rented an apartment from the Housing Authority. In addition to stating her injuries, the petition alleged that the Housing Authority was a government entity and a proper party under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. Bell requested judgment against the Housing Authority in an amount in excess of $10,000.

On May 19, 1998, after the two-year statute for filing tort claims had expired, the Housing Authority moved to dismiss Bell's action for failure to file a written notice of claim prior to commencing the action as required by K.S.A. 12-105b(d). At the hearing on the motion, the Housing Authority also moved to dismiss Bell's petition with prejudice for failure to plead that she had provided notice to the Housing Authority as a condition precedent to filing suit.

Both parties agreed that the Housing Authority is a municipality as defined by K.S.A. 12-105a(a) and that Bell had sent written notice of her claim to the city clerk. There was no contention that Bell's notice to the City did not substantially comply with the informational requirements of K.S.A. 12-105b(d). The question before the district court was whether the letter from the Housing Authority's insurance carrier denying Bell's claim was evidence of compliance with the notice of claim statute or, alternatively, whether a letter sent by Bell to the clerk of the City complied with the notice statute. At the conclusion of the hearing, the district court noted that Bell had sent the notice of claim letter to the city clerk rather than the defendant Housing Authority. The district court dismissed the plaintiffs action with prejudice for failure to give a written notice of claim prior to commencing the action as required by K.S.A. 12-105b(d) and for failure to plead in her petition that she had provided the statutory notice to the Housing Authority, a condition precedent to filing suit. Bell appealed.

When a motion to dismiss under K.S.A. 60-212(b)(6) raises an issue concerning the legal sufficiency of a claim and the trial court receives and considers matters outside the pleadings, the motion shall be treated as one for summary judgment and disposed of as provided under K.S.A. 60-256. Decker v. Kansas Dept. of SRS, 24 Kan. App.2d 155, 156, 942 P.2d 667, rev. denied 262 Kan. 960 (1997).

The burden on the party seeking a motion to dismiss or summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Dismissal of an action or summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 24 Kan. App.2d at 156.

Bell contends that the district court erred in dismissing the action with prejudice because the Housing Authority is a statutory agent of the City; therefore, her notice to the City was notice to the Housing Authority and was given prior to the expiration of the two-year statute of limitations. The Housing Authority asserts that the City and the Housing Authority are separate and distinct municipalities; therefore, notice to the city clerk, agent for service on the City, does not provide notice to the Housing Authority as required by statute. The Housing Authority also argues that the...