Elmore County Com'n v. Ragona

• Decision Date: 27 January 1989
• Citation: 540 So.2d 720
• Parties: ELMORE COUNTY COMMISSION, et al. v. Barbara RAGONA, individually, and as mother and next friend of Thomas James Ragona, a minor. 86-539.
• Court: Alabama Supreme Court

Page 720

540 So.2d 720

ELMORE COUNTY COMMISSION, et al. v. Barbara RAGONA, individually, and as mother and next friend of Thomas James Ragona, a minor.

86-539.

Supreme Court of Alabama.

Jan. 27, 1989.

G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for appellants.

Robert D. Segall and Lee H. Copeland of Copeland, Franco, Screws & Gill, Montgomery, for appellee.

ALMON, Justice.

This personal injury action was filed in Montgomery County by Barbara Ragona and Thomas James Ragona, a minor, by and through his next friend, Barbara Ragona, against Elmore County; the Elmore County Commission; Melvin Curlee and Elzie Mehearg, in their official capacity as Elmore County Commissioners; Richard Joiner; and Nationwide Insurance Company.

On the evening of May 17, 1984, Thomas Ragona was driving north on County Road 1448 in an automobile in which his mother, Barbara Ragona, was a passenger. Richard Joiner's automobile was traveling south. A head-on collision occurred when one of the two vehicles crossed the center line. Near the point of impact, there was a prominent hump in the road beginning where a private driveway intersected with the road and extending into the road approximately seven or eight feet. The general consensus of the testimony was that the hump was approximately 18 inches in height.

The complaint alleged that Commissioners Curlee and Mehearg, Elmore County, and the Elmore County Commission (the "County defendants") had negligently maintained County Road 1448 and that this negligence was a proximate cause of the plaintiffs' injuries. The complaint also alleged that defendant Joiner's automobile crossed over into the wrong lane and collided with the vehicle operated by Thomas Ragona.

The complaint further alleged that Barbara Ragona had a policy of insurance with defendant Nationwide Insurance Company under which it provided uninsured motorist coverage to her. The complaint alleged that Nationwide had wrongfully refused to pay the sum due her pursuant to the contract. The Elmore County defendants filed a motion to transfer the action to the Circuit Court of Elmore County, Alabama, on the grounds that all of the defendants other than Nationwide were residents of Elmore County and that the accident occurred in Elmore County, Alabama. The motion alleged that the presence of Nationwide should be disregarded in determining the proper venue of the action. Thereafter, before the court had entered a ruling on the motion to transfer, the Ragonas filed a motion to dismiss Nationwide pursuant to a pro tanto settlement agreement. The motion to dismiss Nationwide was granted.

The court subsequently denied the motion to transfer. After a jury trial against the Elmore County defendants and Richard Joiner, the jury returned a verdict in favor of Barbara Ragona in the amount of $100,000.00 compensatory damages and $50,000.00 punitive damages. The jury also rendered a verdict in favor of Thomas James Ragona but assessed no damages.

After deducting $13,250.00, the amount of the pro tanto settlement with Nationwide, the court entered judgment in favor of Barbara Ragona and against the defendants in the amount of $86,750.00 compensatory damages and $50,000 punitive damages. The trial court, in reducing the verdict by the amount of the pro tanto settlement, stated that the Ragonas' counsel agreed that the settlement amount should be deducted from the verdict. Motions for judgment notwithstanding the verdict or, in the alternative, for new trial were denied.

The County defendants first contend that the Ragonas' claim filed pursuant to Ala.Code 1975, § 11-12-5, was deficient because the claim was filed by the Ragonas' attorney, who did not have "personal knowledge" of the facts, as required by the statute, and because the damages sought in the claim were not sufficiently itemized to comply with the statute.

Section 6-5-20 provides that an action shall not be commenced against a county until the injured party has presented a claim to the county commission, the commission has disallowed or reduced the claim, and the claimant has refused to accept a reduction proposed by the commission. Section 11-12-5 further provides that "[n]o claim against the county shall be passed upon or allowed by the county commission unless it is itemized by the claimant or some person in his behalf having personal knowledge of the facts...." Ala Code 1975, § 11-12-5. At issue here is the proper interpretation of the terms "itemized" and "personal knowledge" for purposes of the statute.

Section 6-5-20 was enacted to provide county governing bodies with notice of claims against the county and an opportunity to audit and investigate the claims. Marshall County v. Uptain, 409 So.2d 423 (Ala.1981). Section 11-12-5 sets out specific requirements of claims filed pursuant to § 6-5-20. The claim filed in the instant case was filed and signed by the attorney for the Ragonas. The claim included a description of the accident and the accident scene, the basis for the claim that the county was liable, and a description of the injuries and the medical care that was required.

In light of the purpose of the notice statutes, we find that the claim filed by the Ragonas' attorney was sufficient to meet the requirements of § 11-12-5. Despite the argument of the County defendants, we do not believe that the term "personal knowledge" should be construed to limit the class of persons eligible to file claims to those involved in, or eyewitnesses to, the events giving rise to claims. Mrs. Ragona's attorney qualifies as "some person in [her] behalf having personal knowledge of the facts" as required by the statute. Perhaps no one is more familiar with the details of the facts regarding the Ragonas' claim than the attorney representing them.

The predecessor of § 11-12-5 read in pertinent part: "itemized and sworn to by the claimant, or some person in his behalf having personal knowledge of the facts," Code 1940, Tit. 12, § 115 (emphasis added). The words "and sworn to" were deleted by 1975 Ala.Acts, No. 566. This change indicates an intent by the legislature to reduce the stringency of the requirements for filing a claim against a county. Both the general spirit of this change and its specific terms support our holding that an attorney's knowledge of the facts meets the requirement of "personal knowledge"; that is, because the claim no longer has to be sworn to, the attorney can give a statement that meets the requirements of § 11-12-5. While it may be better practice for the client to make and sign the statement, the trial court did not err in holding that the claim was not insufficient on this ground.

Likewise, the itemization provision should not be narrowly construed as applying solely to a breakdown of damages in precise dollar amounts. Rather, the "items" should include a factual background, a description of the event or transaction giving rise to the claim, the alleged basis for the county's liability for damages resulting from the event or transaction, the nature of the damages, and the compensation demanded. See Merrill v. Blount County, 272 Ala. 585, 133 So.2d 212 (1961).

Although the notice statutes governing claims against municipalities are not identical to those governing claims against counties, their purposes are the same. Accordingly, our cases construing those statutes, while not directly applicable, are analogous to, and therefore persuasive in the construction of, the statutes applicable to counties, at least insofar as the two sets of statutes do not conflict. In Diemert v. City of Mobile, 474 So.2d 663 (Ala.1985), this Court held that, with regard to claims against municipalities, strict compliance with the notice statutes is no longer required. The Court stated that cities could not complain that relatively minor deficiencies in claims prevent them from acquiring knowledge of actions pending against them. 474 So.2d at 666. This is the more reasonable approach to the notice requirements, and there is no reasonable basis upon which to apply a different standard to claims against counties.

The County defendants next contend that the trial court committed reversible error in denying its motions for directed verdict and judgment notwithstanding the verdict. The County defendants argue that the case should not have been submitted to the jury because the county may not be held liable for (1) an excessive speed limit; (2) failure to erect warning signs; (3) failure to "super elevate" the road; (4) lack of visibility on the road; or (5) failure to remove the hump that allegedly caused the accident.

It is undisputed that governmental entities, by virtue of their exclusive authority to maintain and control the roadways, are under a common law duty to keep them in repair and in a reasonably safe condition for their intended use. Jefferson County v. Sulzby, 468 So.2d 112 (Ala.1985); cf. Ala.Code 1975, § 23-1-80. This Court held that plaintiffs could sue counties and county commissions in Cook v. St. Clair County, 384 So.2d 1 (Ala.1980). That holding was based on Ala.Code 1975, § 11-1-2, which provides: "Every county is a body corporate, with power to sue or be sued in any court of record."

Since the county can be sued for its negligence, and is exclusively responsible for the maintenance and control of its roadways, its standard of care is to keep its roads in a reasonably safe condition for travel, and to remedy defects in the roadway upon receipt of notice. Sulzby, supra.

The evidence presented justified submitting to the jury the issue of whether the County had notice of a defective roadway condition and thus was under a duty to remedy the alleged defects. Although there was conflicting testimony as to whether the County had in fact breached its duty, there was evidence from which the jury could have reasonably inferred that the County had at least constructive notice of a defective condition of County Road 1448. This evidence...