Diemert v. City of Mobile
| Decision Date | 03 July 1985 |
| Citation | 474 So.2d 663 |
| Parties | Howard DIEMERT, as father and next friend of Angela Victoria Diemert, deceased v. CITY OF MOBILE, a municipal corporation. 83-1202. |
| Court | Alabama Supreme Court |
Gregory B. Breedlove of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellant.
Horace Moon, Jr. and William G. Jones, III, Mobile, for appellee.
This is an appeal from a summary judgment in a wrongful death case against the City of Mobile granted on the ground that the complaint, although filed within six months, failed to comply substantially with the claims statutes. We reverse and remand.
On April 13, 1980, eight-year-old Angela Diemert fell into a flooded drainage ditch in Mobile, was swept by the current into a large culvert, and drowned.
On July 25, 1980, Angela's father, Howard Diemert, filed a complaint on Angela's behalf against the City of Mobile, and others, seeking damages for her wrongful death. Subsequently, the City moved for summary judgment, claiming that Diemert had failed to comply with the pertinent notice statutes, Code 1975, §§ 11-47-23 and 11-47-192, which provide as follows:
The motion was denied.
The City then filed a motion to reconsider the denial of the summary judgment motion. The City cited to the trial court this Court's decision in Ex parte City of Huntsville, 456 So.2d 72 (Ala.1984), and argued that the holding therein mandated that its motion for summary judgment be granted. The trial court agreed, granted the City's motion to reconsider and, in turn, also granted its motion for summary judgment. The trial court's order provided, in pertinent part, as follows:
"Plaintiff has failed to comply with the statutory notice requirements of §§ 11-47-192 and 11-47-23, and even though the Court finds the result to be harsh and oppressive, the Court is bound to follow the laws of the State of Alabama, including, specifically, the recent case from the Alabama Supreme Court being styled [Ex parte City of Huntsville ]."
Diemert appeals, contending that the trial court erred in granting the City's motion. He argues that, even though he did not strictly comply with §§ 11-47-23 and 11-47-192 by filing a claim with the City, his complaint substantially complied with both, as required by Ex parte City of Huntsville. The City, on the other hand, argues that Diemert's complaint did not substantially comply with the statutes because: (1) it was not a sworn complaint and, (2) it incorrectly stated the date of Angela's death as May 13, 1980, rather than April 13, 1980.
As both Diemert and the City correctly state, in Ex parte City of Huntsville this Court held that where a plaintiff sustains a personal injury and wishes to bring suit against a municipality as a result thereof, if the plaintiff files a "sworn complaint" against the municipality within six months, as required by § 11-47-23, and that complaint provides the information required by § 11-47-192, "the manner in which the injury was received, the day and time and place where the accident occurred and the damages claimed," the complaint satisfies both §§ 11-47-23 and 11-47-192.
The city argues that the language of Ex parte City of Huntsville should be read literally to mean that, unless a complaint is sworn to and unless it states the exact date on which the injury occurred, it is insufficient to satisfy the statutes. To hold otherwise, the city contends, would defeat the purpose of the statutes, which is to give the city notice that a tort claim is being brought against it, enabling it to investigate, determine the merits of the claim, and, if necessary, adjust it without litigation. City of Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99 (1963).
We do not believe that Ex parte City of Huntsville should be read literally. In fact, we take this opportunity to further explain the rule of law which is applicable in these cases, because the cases are confusing. In City of Huntsville v. Davis, 456 So.2d 69 (Ala.Civ.App.1983), the Court of Civil Appeals noted the confusion in our cases, as follows:
In Ex parte City of Huntsville, this Court, in dicta, attempted to clear up this confusion, but unfortunately failed to do so.
For example, in Ex parte City of Huntsville, this Court attempted to reconcile the cases and stated the following:
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