City of Fort Wayne v. Cameron, 3--275A23

Docket NºNo. 3--275A23
Citation349 N.E.2d 795
Case DateJune 15, 1976
CourtCourt of Appeals of Indiana

Warren B. Rosenblatt, Associate City Atty., Dale & Rosenblatt, David B. Keller, Parker, Hoover, Keller & Waterman, David A. Travelstead, William N. Salin, City Atty., Leonard E. Eilbacher, Associate City Atty., William L. Briggs, Police Legal Advisor, Fort Wayne, for appellant.

Neil F. Sandler, Howard B. Sandler, Edward N. Smith, Fort Wayne, for appellee.


In this appeal we are again confronted with a plaintiff's (Cameron's) attempt to sue a municipality in tort when he did not serve upon the municipality a notice of claim within sixty days after the occurrence complained of.

The statute provides:

'Hereafter no action or actions of any kind for damages arising from any negligence, wilfulness, nuisance or other tort of any civil city or town that causes injury to any person, or loss, injury or damage to any property, or any wrongful death, and regardless of to whom any such action or actions may accrue, shall be brought or maintained against any civil city or town unless there is first served upon either the mayor or clerk or clerk treasurer of any such city or a member of the board of trustees of any such town, either by delivery thereto in person or by registered mail with return card, a written notice of the occurrence complained of, setting out therein a brief general description of the date and time, the place, the conditions and cause, the nature and extent of the injury to person and loss, injury or damage, if any, to property, the date and cause of any resulting death charged as wrongful and the nature of the damages arising to anyone therefrom, all as associated with and caused by such occurrence. The notice shall be dated and signed by the person giving the same and shall be served as aforesaid so as to be received by some such municipal official aforesaid within sixty (60) days after the occurrence complained of, regardless of what causes of action may arise or result therefrom, except that where snow or ice is associated with the occurrence as the cause thereof, in whole or in part, the notice shall be so served within thirty (30) days after the occurrence.' 1

When Cameron commenced suit, the city raised noncompliance with the statute as an affirmative defense and moved for summary judgment, supporting its motion by affidavit of the city clerk that no notice had been given within sixty days. The court denied the motion and an interlocutory appeal has been perfected. 2

The facts asserted by the city are that Cameron was shot by a city police officer shortly after 1:00 a.m. on June 20, 1969, and that no notice of claim was served upon the city within sixty days thereafter.

The facts asserted by Cameron are that on June 20, 1969, he was a minor; that as a result of the shooting he was paralyzed and incapacitated; that he attained his majority on March 16, 1970, and that formal notice of claim was served on the city on April 3, 1970.

Upon these assertions of fact, the trial court made the following entry:

'The Court now finds that Motion to Dismiss on the exact point raised in said Motion has heretofore been overruled, and further that in light of the ruling of the Supreme Court of Indiana in the case of Chaffin v. Nocosia (sic), 310 N.E.2d 867, the doctrine of para materia (sic) requires a reading of the Disability Statute, IC 34--1--2--5 and the Notice of Claim against Cities and Towns Statute, IC 18--2--21 must be read (sic) together and that notice was given and the Motion for Summary Judgment is therefore overruled and denied.'

The court erred in this conclusion. In addition to the express conflict between the provisions of the notice of claim statute and the disability statute pointed out in Judge Staton's dissent, the rule of in pari materia construction does not apply in this case. The disability exception, IC 1971, 34--1--2--5 (Burns Code Ed.) is a part of the Acts of 1881, entitled 'An act concerning proceedings in civil cases.' It provides:

'Any person, being under legal disabilities when the cause of action accrues, may bring him action within two (2) years after the disability is removed.' (Our emphasis)

The statute plainly refers to when the action may be brought, i.e., it deals with the operation of the otherwise appropriate statute of limitations.

The disability statute is inapposite here. The notice of claim statute, which was enacted as Ch. 80 of the Acts of 1935, is not a statute of limitations. It is, instead, a procedural precedent to the remedy of maintaining a civil action against the city. Thompson v. City of Aurora (1975), Ind., 325 N.E.2d 839. As such, it is not within the context of the disability statute.

Having so decided, we must nevertheless consider whether the ruling of the trial court may be sustained on other grounds.

We recently decided that the notice of claim statute does not violate constitutional requirements for equal protection. Our opinion in Batchelder v. Haxby (1975), Ind.App., 337 N.E.2d 887, controls that issue. 3

Judge Staton, however, would find that to afford due process, the statute must be read to imply a reasonable time within which notice may be given after the cessation of a physical or mental disability which existed or was incurred at the time the alleged tort was committed. Such a rationale is appealing as a means of avoiding a harsh result upon a hypothetically innocent plaintiff who was unable to protect himself. However, it does not follow a fortiori that because a statute operates harshly in a given in stance or serves to trap an innocent but unwary plaintiff, due process guarantees are thereby violated.

As Justice Prentice recently observed in writing for the majority in Sidle v. Majors (1976), Ind., 341 N.E.2d 763, 766:

'In approaching a consideration of the constitutionality of a statute, we must at all times exercise self restraint. Otherwise, under the guise of limiting the Legislature to its constitutional bounds, we are likely to exceed our own. That we have the last word only renders such restraint the more compelling. We, therefore, remind ourselves that in our role as guardian of the constitution, we are nevertheless a court and not a 'supreme legislature.' We have no right to substitute our convictions as to the desirability or wisdom of legislation for those of our elected representatives. We are under a constitutional mandate to limit the General Assembly to its lawful territory of prohibiting legislation which, although enacted under the claim of a valid exercise of the police power, is unreasonable and oppressive. Nevertheless, we recognize that the Legislature is vested with a wide latitude of discretion in determining public policy. Therefore, every statute stands before us clothed with the presumption of constitutionality, and such presumption continues until clearly overcome by a showing to the contrary.

In the deliberative process, the burden is upon the challenger to overcome such presumption, and all doubts are resolved against his charge.'

The question is not whether the notice of claim statute was an unwise or harsh enactment. The issue is whether the statute transcends the bounds of due process required by our state and federal constitutions.

In Aaron v. City of Tipton (1941), 218 Ind. 227, 32 N.E.2d 88, our Supreme Court reaffirmed the common law basis of municipal liability and construed the statute as establishing a procedural precedent. This view has been since adhered to in Galbreach v. City of Indianapolis (1970), 253 Ind. 472, 255 N.E.2d 225, and most recently in Thompson v. City of Aurora (1975), Ind., 325 N.E.2d 839. In so ruling, the court in Aaron characterized the statute as a procedural step necessary to the remedy of bringing an action to enforce liability and stated:

'The notice does not affect the right, it affects only a remedy of the injured--the remedy of instituting and maintaining an action (against the city) for the collection of the damages.' 218 Ind. 227, 236, 32 N.E.2d 88, 91.

Where the statute deals merely with a remedy, our courts have been loathe to find an issue in due process unless there exists but a single remedy and the legislature withdraws all legal means of enforcement. Guthrie v. Wilson (1959), 240 Ind. 188, 162 N.E.2d 79; Sansberry v. Hughes (1910), 174 Ind. 638, 92 N.E. 783.

Here the statute applies only to Cameronhs remedy against the city. It requires the notice as a procedural precedent to this remedy. It does not by its terms require that the notice be personally given by the claimant. The sixty-day time frame does not appear so short and unreasonable as to effectively deprive would-be litigants of any right of action against municipalities. On its face, the statute is not a denial of due process, nor does it appear so in operation under the additional facts asserted by Cameron. Although the fact issues he presents raise the prospect that as a result of the shooting he was paralyzed from the chest and elbows down, there is no factual indication that he was either mentally or physically incapable of indicating his belief that he had a claim or of authorizing or directing that a notice be given. In fact, one of the police reports submitted by Cameron in opposition to the summary judgment discloses that Cameron was mentally alert and was interviewed by the police on June 25, 1969, five days after the shooting. In short, we cannot say the statute denied Cameron his constitutional rights to due process. 4

The remaining question is whether there was sufficient compliance with the statute to prevent its bar.

Following the decision in Aaron, which re-established the common law basis of liability and determined the statute to be procedural, the Court in Galbreath v. City of Indianapolis (1970), 253 Ind. 472, 255 N.E.2d 225,...

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3 cases
  • Wheeler v. District of Columbia Bd. of Zoning, 12632.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 28, 1978
    ...v. Harger-Haldeman, 58 Cal.2d 23, 22 Cal.Rptr. 657, 660, 372 P.2d 649, 652 (1962) (emphasis deleted); City of Fort Wayne v. Cameron, 349 N.E.2d 795, 800 (Ind.App. 1976). Consequently, a determination of whether the BZA has substantially complied with D.C. Code 1978 Supp., § 1-171i(d) requir......
  • City of Fort Wayne v. Cameron, 1277S811
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1977
    ...The Court of Appeals for the Third District reversed the trial court's determination. City of Fort Wayne v. Cameron, (1976) Ind.App., 349 N.E.2d 795. The Court of Appeals held that the statutes at issue are irreconcilably in conflict and therefore cannot be read together. The court also hel......
  • City of Indianapolis v. Satz, 2-175A14
    • United States
    • Indiana Court of Appeals of Indiana
    • April 26, 1977
    ...had been satisfied. Another plaintiff shot by a city police officer was involved in City of Fort Wayne v. Cameron (1976), Ind.App., 349 N.E.2d 795, in which a majority of the Third District held that there was no compliance with the notice statute although the shooting was investigated. The......

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