City of Pascagoula v. Tomlinson, 97-IA-00845-SCT.

• Citation: 741 So.2d 224
• Decision Date: 13 May 1999
• Docket Number: No. 97-IA-00845-SCT.,97-IA-00845-SCT.
• Parties: CITY OF PASCAGOULA, Mississippi v. Ronald Lee TOMLINSON.
• Court: United States State Supreme Court of Mississippi

741 So.2d 224

CITY OF PASCAGOULA, Mississippi v. Ronald Lee TOMLINSON.

No. 97-IA-00845-SCT.

Supreme Court of Mississippi.

May 13, 1999.

Robert W. Wilkinson, Wendy Elizabeth Walker, Pascagoula, John B. Edwards, II, Jackson, Attorneys for Appellant.

D. Neil Harris, Sr., Attorney for Appellee.

BEFORE PRATHER, C.J., SMITH AND WALLER, JJ.

PRATHER, Chief Justice, for the Court:

STATEMENT OF THE FACTS AND CASE

¶ 1. Appellee Ronald Lee Tomlinson ("Tomlinson") was injured when he stepped into an uncovered pipe hole maintained by the appellant City of Pascagoula ("the City"). On May 15, 1996, Tomlinson filed a notice of claim with Brenda Reed, the City Clerk of Pascagoula, and Melvin Mitchell, the City's attorney, in an attempt to comply with the notice provisions of the Mississippi Tort Claims Act. See Miss. Code Ann. § 11-46-11 (Supp.1998). Fifteen days after filing his notice of claim, Tomlinson filed his complaint against the City in the Circuit Court of Jackson County. On July 29, 1996, the City filed a motion to dismiss, arguing that Tomlinson had failed to comply with the notice requirements of the Tort Claims Act. The circuit court denied the City's motion to dismiss, finding that Tomlinson had substantially complied with the notice provisions of the Tort Claims Act. The City filed for an interlocutory appeal, which was granted by this Court.

ISSUES

I. Whether Miss.Code Annotated § 11-46-11 (Supp.1996) requires compliance with each and every element articulated under the code for proper notice.

II. Whether the plaintiff's failure to allege compliance with Miss. Code Annotated § 11-46-11 (Supp.1996) requires dismissal?

III. Whether notice was filed with the chief executive officer.

¶ 2. The Mississippi Tort Claims Act is set out at §§ 11-46-1 to -23 Miss. Code Ann. (Supp.1998). Section 11-46-11 provides:

(1) After all procedures within a governmental entity have been exhausted, any person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity, and, if the governmental entity is participating in a plan administered by the board pursuant to Section 11-46-7(3), such chief executive officer shall notify the board of any claims filed within five (5) days after the receipt thereof.

(2) The notice of claim required by subsection (1) of this section shall be in writing, delivered in person or by registered or certified United States mail. Every notice of claim shall contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought and the residence of the person making the claim at the time of the injury and at the time of filing the notice.

(3) All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after; provided, however, that the filing of a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five (95) days. The limitations period provided herein shall control and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter.

Miss.Code Ann. § 11-46-11 (Supp.1998).

¶ 3. In Reaves v. Randall, 729 So.2d 1237 (Miss.1998), this Court adopted a "substantial compliance" scheme, holding that "(w)hen the simple requirements of the Act have been substantially complied with, jurisdiction will attach for the purposes of the Act." In Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999), this Court approvingly cited the Indiana case of Collier v. Prater, 544 N.E.2d 497, 498 (Ind.1989) for the proposition that:

[N]otice 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.

Shubuta, at 263.

¶ 4. The City, however, argues that the notice provided by Tomlinson did not even rise to the level of substantial compliance with the requirements of the Tort Claims Act. The City submits that courts in certain other jurisdictions require substantial compliance with each applicable statutory requirement of notice:

Of the states with similar tort claims acts requiring information elements of notice, the states which require only substantial compliance with claim notice generally mandate full compliance with all the information provisions of notice. For example, in Phillips v. Desert Hospital District, 243 Cal.Rptr. 196, 200-01 (Cal.Ct.App.1988), the California Court of Appeals held that where a plaintiff's notice letter lacked his address and the amount of money damages claimed, the claimant failed to satisfy the notice requirements of the California Tort Claims Act.... In Miller v. Brungardt, 904 F.Supp. 1215, 1218 (D.Kan.1995), the Kansas Federal District Court dismissed a plaintiff's claim for failure to include all information elements in his notice of claim. The court further held that substantial compliance with the tort claim notice existed only when the plaintiff attempts to satisfy each information element required by the statute, and could never exist with one element missing. Although Kansas is a "substantial compliance" state, its tort act is almost identical to Mississippi's.

Although several other jurisdictions have required that a plaintiff substantially comply with each element of the notice provisions of these states' Tort Claims Acts, this Court in Reaves set forth no such a requirement.

¶ 5. This Court in Reaves set forth the following holding to assist in a determination of whether substantial notice has been provided to the "chief executive officer" of a governmental entity:

In order to give reasonable meaning to the statute, we hold today that this term may be read to include any of the following: president of the board, chairman of the board, any board member, or such other person employed in an executive capacity by a board or commission who can be reasonably expected to notify the governmental entity of its potential liability.

Reaves, at 1240. This Court in Reaves did not issue any detailed holdings with regard to the issue of what level of compliance constitutes "substantial compliance" with the other notice provisions of the Tort Claims Act. Some indication as to the intent of the majority in Reaves can be gleaned, however, from the nature of the notice provided in that case. In Reaves, the notice provided was in the form of a letter from Reaves' attorney to the superintendent, stating that:

I have been retained by Rebecca Lou Rouse to represent her daughter, Ashley Renee Reaves, with regard to injuries and damages arising and growing out of a bicycle/motor vehicle accident which occurred on 2/18/96 at approximately 1:30 p.m. on the grounds of Davis School. It would be greatly appreciated if you would have your insurance carrier contact me regarding adjustment of this claim. /s/ Preston Davis Rideout, Jr.

This Court held that:

When the simple requirements of the Act have been substantially complied with, jurisdiction will attach for the purposes of the Act. In this case, we find that Reaves substantially complied with the notice provisions of the Act. Her notice letter, sent to Superintendent Stevenson, lists the persons involved in the accident, when the accident occurred, where the accident occurred, and what vehicles were involved.

As noted supra, this Court in Carr further explained that:

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.

Carr, at 263 (quoting Collier).

¶ 6. The notice in the present case took the form of a document entitled "Notice of Claim Pursuant to Section 11-46-11 of the Mississippi Code Annotated." This document was delivered to the City Clerk of Pascagoula and the City Attorney and provided that:

Re: Ronald Lee Tomlinson Please take notice that pursuant to Mississippi Code Annotated Section 11-46-11, Ronald Lee Tomlinson is making a claim against the City of Pascagoula, Mississippi for an appropriate amount for the injury to his leg which resulted when on June 2, 1995, he was walking along Ingalls Avenue and was crossing over to 11th Street, Pascagoula, Mississippi, and stepped into an uncovered pipe hole approximately three to four inches from the curb maintained by the City of Pascagoula. Employees of the City of Pascagoula, Mississippi erred in not

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