Carr v. Town of Shubuta, 96-CT-01266-SCT.

• Decision Date: 11 February 1999
• Docket Number: No. 96-CT-01266-SCT.,96-CT-01266-SCT.
• Citation: 733 So. 2d 261
• Parties: Agnes CARR v. TOWN OF SHUBUTA.
• Court: Mississippi Supreme Court

733 So.2d 261

Agnes CARR v.TOWN OF SHUBUTA.

No. 96-CT-01266-SCT.

Supreme Court of Mississippi.

February 11, 1999.

Rehearing Denied April 29, 1999.

C. Victor Welsh, III, Crymes G. Pittman, Jackson, Peter K. Smith, Quitman, Attorneys for Appellant.

J. Richard Barry, Houston, TX, Mark H. Tyson, Jackson, Attorneys for Appellee.

EN BANC.

ON PETITION FOR WRIT OF CERTIORARI

McRAE, Justice, for the Court:

¶ 1.This appeal evolves from a personal injury action filed by the appellantAgnes Carr against the Town of Shubuta because of injuries she received as a result of an alleged fall on a sidewalk constructed and maintained by the municipality.Summary judgment was granted based upon Carr's failure to comply with the notice of claim provisions of Miss.Code Ann. § 11-46-11(Supp.1998) of the Mississippi Tort Claims Act.Finding that Carr did in fact substantially comply with the notice of provisions of the Act, we reverse the judgment of the Court of Appeals and remand.

FACTS

¶ 2.On October 13, 1993, Agnes Carr was injured when she slipped and fell on a public sidewalk in Shubuta, Mississippi, sustaining a broken and dislocated elbow requiring corrective surgery.Shortly after the incident a city police officer prepared an incident report which was turned in and submitted to the city clerk.On October 19, 1993, Carr signed a "Report of Public Liability" at the office of the city clerk.¹This document, provided by the city, contained all the information required by the notice of claim provisions of § 11-46-11, except the amount of damages sought, although her injuries were described generally, i.e. dislocated elbow, chipped bone, pulled ligament, loose teeth, scratches, and broken glasses.The notice also gave the name of her primary physician.Her monetary damages were unknown at the time as her medical treatment was ongoing.Correspondence between the city and its insurer, the Mississippi Municipal Liability Plan MMLP, obtained during discovery, indicates that Carr continued to inform the city of her condition.²It is uncontroverted that the mayor ultimately received notice of the accident and injury shortly afterward.There were numerous contacts, oral and written, between the MMLP adjuster and Carr and later Carr's counsel.A thorough investigation of the incident was promptly conducted by the city and the adjuster.The adjuster obtained copies of Carr's medical records through a release she timely executed in favor of the MMLP who by this time was acting on behalf of Shubuta and was actively engaged in settlement negotiations.

¶ 3.Settlement negotiations broke down, and on December 2, 1994, one year and ninety days after her fall, Carr filed the Circuit Court of Clarke County a personal injury lawsuit against the Town of Shubuta alleging that the town had failed to exercise ordinary and reasonable care in inspecting and maintaining the sidewalk.On December 1, 1994, her counsel had sent a letter to the city notifying same of his intent to file suit.

¶ 4.On December 30, 1994, the Town of Shubuta filed its answers and defenses to Carr's complaint and denied negligence on the part of the town and affirmatively asserted that Carr's claim was barred by the notice of claim provision of the Tort Claims Act, and secondly, that the claim was barred because the defect in the sidewalk was open and obvious.In granting summary judgment in favor of the Town of Shubuta, the trial court found that Carr had failed to comply with the notice requirements of Miss.Code Ann. § 11-46-11(Supp.1998), and did not address the "open and obvious" issue.³¶ 5.The Court of Appeals, justifiably relying on previous opinions of this Court requiring strict compliance with the notice of claim provisions of the Act, affirmed the judgment of the trial court and denied the petition for rehearing.This Court granted certiorari on Carr's petition.

ANALYSIS

¶ 6.In Reaves v. Randall,729 So.2d 1237(Miss.1998), this Court adopted a substantial compliance standard with respect to the notice of claim requirements of the Tort Claims Act.To the extent that Reaves and the opinion in this case conflict with City of Jackson v. Lumpkin,697 So.2d 1179, 1182(Miss.1997), Carpenter v. Dawson,701 So.2d 806, 808(Miss.1997), andHolmes v. Defer,722 So.2d 624(Miss.1998), which require strict compliance, Lumpkin, Carpenter, and Holmes are hereby overruled.

¶ 7.In Pruett v. City of Rosedale,421 So.2d 1046, 1052(Miss.1982), this Court abolished the judicially created doctrine of sovereign immunity for general tort liability, leaving the Legislature the responsibility to place limitations on governmental liability within constitutional limits.Presley v. Mississippi State Highway Comm.,608 So.2d 1288, 1291(Miss.1992)(plurality opinion).

¶ 8.Many other jurisdictions having notice of claim requirements as a prerequisite to filing suit against the state or political subdivisions have adopted substantial compliance in some form.Most of those have determined that the purpose of such a notice requirement is to give the governmental entity an opportunity to investigate the claim and notifying the appropriate agencies or officials of dangerous conditions or inappropriate conduct to allow for corrective or remedial measures, as well as to permit or encourage amicable settlement with the citizenry and/or prepare a defense to the claim.Felder v. Casey,487 U.S. 131, 142-43, 108 S.Ct. 2302, 2309, 101 L.Ed.2d 123, 140-41(1988);Blohm v. Emmet County Bd. of County Road Comm.,223 Mich.App. 383, 565 N.W.2d 924, 926(1997);Collier v. Prater,544 N.E.2d 497, 498(Ind.1989);Fritsch v. St. Croix Central School Dist.,183 Wis.2d 336, 515 N.W.2d 328, 331(Ct.App.1994).

¶ 9.However, such a requirement should not act as a barrier allowing the state to defeat totally the purpose of the act itself.Admittedly, the act is intended to limit the government's liability for tortious conduct, just as the Worker's Compensation Act was intended to limit the exposure of Mississippi employers, but it is also intended to allow for the orderly administration of legitimate claims against governments for such tortious conduct, and like the workers' compensation act, serves as an exclusive remedy for such claims.As the Indiana Supreme Court stated in Collier, supra.,

The purpose of the notice statute being to advise the city of the accident so that it may promptly investigate the surrounding circumstances, we see no need to endorse a policy which renders the statute a trap for the unwary where such purpose has in fact been satisfied.

Thus, a notice is sufficient if it substantially complies with the content requirements of the statute.What constitutes substantial compliance, while not a question of fact but one of law, is a fact-sensitive determination.In general, a notice that is filed within the [requisite] period, informs the municipality of the claimant's intent to make a claim and contains sufficient information which reasonable affords the municipality an opportunity to promptly investigate the claim satisfies the purpose of the statute and will be held to substantially comply with it.

Collier,544 N.E.2d at 498-99(emphasis in original, citations omitted & quoting Galbreath v. City of Indianapolis,253 Ind. 472, 255 N.E.2d 225, 229(1970)).

¶ 10.In this case, the Town of Shubuta asserts two deficiencies in the form signed by Carr shortly after her fall.First, they allege that the notice was not delivered to the mayor, and second, that the notice did not make a claim for liquidated damages.In actuality, Carr went to the office of the city clerk.The Town of Shubuta, through the clerk, provided her the city's form for filing a claim.Carr was then assisted by the clerk in filling out the city's form, and, after dating and signing it, left the form with the clerk who in turn processed same and forwarded it to the MMLP.There is no dispute that the mayor was made aware of the claim and even participated directly in the investigation of the scene independently and in collaboration with the MMLP.

¶ 11.Furthermore, at the time Carr filled out the form, she listed all of her injuries in the appropriate space provided in the city's form and gave the name of her primary physician.At the time she executed the form, there is no way she could have possibly known a liquidated amount of damages as she was still being treated for her injuries, nor was she represented by counsel.It is also important to note that the city's form does not provide a blank for liquidated damages other than for an estimate for property damage.There is no dispute that the completed form disclosed the date and time of the accident, the nature/cause of the accident, persons/witnesses involved, and the exact location of the accident.There is also no dispute that the insurer was given a medical release to obtain Carr's medical records and did obtain those records in a timely fashion.Carr, and later her attorney, appear to have cooperated fully with the city and then its insurer throughout the investigation and settlement discussions.The record indicates that Carr and her attorney were contacted directly by the insurer and dealt almost exclusively with the insurer.Then, after settlement negotiations broke down approximately one year and ninety days after the fall, and after Carr filed suit and discovery was completed, Shubuta and its insurer chose to avail themselves of the protection afforded by Carr's alleged failure of Ms. Carr to strictly comply with the notice of claim provisions of § 11-46-11.They are estopped.

¶ 12.In a similar case, the Wisconsin Court of Appeals applied the doctrine of estoppel to sustain such a claim where strict compliance with the notice requirements of that state's tort claim act was lacking.In Fritsch v. St. Croix Central School Dist.,183 Wis.2d 336, 515 N.W.2d 328(Ct.App.1994), Fritsch, a schoolteacher, was injured in an accident in which her vehicle...