Finnie v. JEFFERSON COUNTY SCHOOL DIST. R-1

• Decision Date: 01 December 2003
• Docket Number: No. 02SC598.,02SC598.
• Parties: Laura FINNIE, Petitioner, v. JEFFERSON COUNTY SCHOOL DISTRICT R-1, Respondent.
• Court: Colorado Supreme Court

79 P.3d 1253

Laura FINNIE, Petitioner, v. JEFFERSON COUNTY SCHOOL DISTRICT R-1, Respondent.

No. 02SC598.

Supreme Court of Colorado, En Banc.

December 1, 2003.

Tamas Viski-Hanka, Denver, Colorado, Attorneys for Petitioner.

Caplan and Earnest LLC, Colleen A. O'Laughlin, Derek H. Kiernan-Johnson, Boulder, Colorado, Attorneys for Respondent.

Justice MARTINEZ delivered the Opinion of the Court.

Petitioner challenges the court of appeals' decision, Finnie v. Jefferson County School District R-1, No. 01CA1433 (Colo.App. July 25, 2002), which affirmed the trial court's grant of a motion to dismiss the petitioner's tort action against the Jefferson County School District. We must determine whether a plaintiff's filing of notice with a public entity's Risk Management Department, given allegations that the Risk Management Department represented that such filing was proper, can comply with the requirements of the Governmental Immunity Act (GIA) to serve notice upon a public entity.¹ See § 24-10-109(3), 7B C.R.S. (2003).

We hold that to determine whether the plaintiff fulfilled the requirement contained in section 24-10-109(3), the trial court must consider principles of agency and equity, the intent and purposes of the notice statute, and whether the Risk Management Department misrepresented that the filing of notice was proper. Attempting to apply these principles to the case before us, we conclude that the record contains insufficient facts to determine whether the plaintiff complied with the statute. Thus, we further hold that trial courts must decide all issues of immunity before trial, regardless of whether the immunity issue is jurisdictional. To do so, trial courts may conduct Trinity hearings if necessary to determine the relevant facts.

I. Facts and Procedural Background

Laura Finnie, Petitioner, suffered injuries when she fell headfirst through an opening in the floor of a high school auditorium stage into an orchestra pit below. Finnie, a high school student, was crossing the dimly lit stage to perform with her school band when she fell eight to ten feet through the unmarked opening into the orchestra pit, breaking a ladder with her head as she fell. She alleges that she suffered multiple injuries from the fall, including brain damage resulting in epilepsy, a concussion, and the loss of the ability to read.

In an affidavit submitted to the trial court, Finnie's counsel claims that when preparing to file an action against the Jefferson County School District (the "School District"), he telephoned the School District's Risk Management Department to inquire where he must serve notice of claims as required by the GIA. The affidavit states that a receptionist referred the attorney to two Risk Management Department employees, one of whom returned the attorney's call. The affidavit further states that the employee informed the attorney that the Department was authorized to receive the statutory notice for the Jefferson County School Board (the "School Board"). In the affidavit, the attorney further alleges that, relying on this information, he then submitted a notice of claim to the Risk Management Department. Clearly framed as a "notice of claim," the letter appears to comply entirely with the GIA's notice requirements, except that the attorney sent it to the Risk Management Department rather than the School Board or its attorney as required by the GIA. See § 24-10-109(2)-(3), 7B C.R.S. (2003). Upon receiving the notice, the Risk Management Department sent a letter to Finnie's attorney acknowledging receipt of the notice of claim. The letter further stated that "[w]ithout admitting or denying the timeliness or the sufficiency of notice, [the Risk Management Department had] taken an investigation into this matter." Subsequently, Finnie filed this tort action against the School District.

The School District moved to dismiss the complaint for failure to state a claim on the basis that the plaintiff failed to send notice of the claim to the School Board or its attorney as required by the GIA. See § 24-10-109(3). The trial court granted the School District's motion to dismiss without a hearing on the matter. The trial court first stated that it must adjudicate section 24-10-109(3) disputes under a "strict compliance" standard, as required by Brock v. Nyland, 955 P.2d 1037 (Colo.1998). The trial court reasoned that, under this standard, statutory notice is proper only when filed with either the School Board or its attorney, as required by the GIA. See § 24-10-109(3) (requiring filing of notice with the governing body of a public entity or its attorney). The trial court then determined that the "strict compliance" standard did not allow for agency arguments and that Finnie could not rely on the "oral assertions and `apparent authority'" of Risk Management Department employees because the attorney had access to controlling case law requiring service on the governing body or its attorney.

On appeal, the court of appeals affirmed. Finnie v. Jefferson County Sch. Dist. R-1, No. 01CA1433, slip op. at 6 (Colo.App. July 25, 2002). The court of appeals observed that the trial court had determined under C.R.C.P. 12(b)(5) that the complaint was insufficient, but believed that the trial court had considered matters outside the pleadings. Noting that a court must convert a motion to dismiss to one for summary judgment when "information outside of the complaint is submitted to the trial court," the court of appeals applied a summary judgment standard on review. Id. at 4-5 (citing Dunlap v. Colorado Springs Cablevision, Inc., 829 P.2d 1286 (Colo.1992)). The court of appeals recognized that the School Board could delegate its authority to receive statutory notice, contrary to the trial court's statement. The court of appeals, however, held that Finnie failed to show that the Board or its attorney delegated apparent authority to the Risk Management Department because she did not establish that the principal, the School District, created apparent authority through words or conduct.² Id. at 5-6. Thus, the court rejected Finnie's argument that the School District conferred apparent authority on the Department's employee and affirmed the trial court's decision.

II. Standard of Compliance

We begin our analysis by examining the trial court's application of a "strict compliance" standard to section 24-10-109(3). After reviewing the various opinions of the court in Brock, we conclude that each supports a substantial compliance standard.

The GIA establishes governmental tort immunity from actions filed against public entities or their employees and then provides exceptions and waivers under which individuals may maintain such actions. See §§ 24-10-105 to -106, 7B C.R.S. (2003). Under the GIA, an injured person seeking damages from a public entity or employee must provide written notice of the claim within 180 days of discovery of the injury. § 24-10-109(1), 7B C.R.S. (2003). The GIA then sets forth a series of criteria that the notice must satisfy. See § 24-10-109(2)-(6).

This court has interpreted one of the GIA's notice provisions as a jurisdictional prerequisite for suits against public entities and other notice provisions as presenting statutory defenses to claims. See Brock v. Nyland, 955 P.2d 1037, 1042-43, 1045-46 (Colo.1998) (Scott, J.; Kourlis, J., concurring); Reg'l Transp. Dist. v. Lopez, 916 P.2d 1187, 1193 (Colo.1996). We characterized section 24-10-109(1), which requires injured parties to submit written notice within 180 days of the discovery of an injury, as a jurisdictional prerequisite to suit that therefore requires strict compliance with its terms. Lopez, 916 P.2d at 1192-95; East Lakewood Sanitation Dist. v. Dist. Court, 842 P.2d 233, 235-36 (Colo.1992). In contrast, we characterized section 24-10-109(3) as providing a statutory defense to claims rather than creating a jurisdictional prerequisite to suit. Brock, 955 P.2d at 1042-43, 1045-46; Lopez, 916 P.2d at 1193.

Subsection three of the statute requires litigants to file notice with either the governing body of the public entity or the entity's attorney. It states:

If the claim is against the state or an employee thereof, the notice shall be filed with the attorney general. If the claim is against any other public entity or an employee thereof, the notice shall be filed with the governing body of the public entity or the attorney representing the public entity. Such notice shall be effective upon mailing by registered mail or upon personal service.

§ 24-10-109(3).

Though we have struggled to articulate the extent to which a plaintiff must comply with section 24-10-109(3) to fulfill its notice requirement, we have not completed this task. See Brock, 955 P.2d at 1037 (holding, in a plurality opinion, that section 24-10-109(3) "mandates more than substantial compliance"); Woodsmall v. Reg'l Transp. Dist., 800 P.2d 63 (Colo.1990) (suggesting that a substantial compliance standard applies to section 24-10-109(3)). Most recently, in Brock, the court produced three separate opinions regarding the necessary level of compliance. Brock, 955 P.2d at 1037. Comparing the three separate opinions of the Brock court, we conclude the reasoning of all three opinions agree that determinations of compliance with section 24-10-109(3) must consider principles of agency and equity, as well as the intent and purposes of the statute. Therefore, we reject any reasoning in Brock that requires a strict compliance standard.

In the lead opinion, Justice Scott, joined by one other justice, may have appeared to argue that section 24-10-109(3) requires strict compliance. Specifically, he stated that "the plain language of section 24-10-109(3) mandates more than substantial compliance" and rejected any interpretations of prior case law that endorsed a substantial compliance standard. Brock, 955 P.2d at 1043 (rejecting an interpretation of Reg'l Transp. Dist. v. Lopez, 916 P.2d 1187...