Franks v. Kohl

• Decision Date: 19 December 1979
• Docket Number: No. 62959,62959
• Citation: 286 N.W.2d 663
• Parties: Ronald FRANKS, Appellant, v. Everett KOHL, Errol A. Montgomery, and the City of Cedar Rapids, a Municipal Corporation, Appellees.
• Court: Iowa Supreme Court

Page 663

286 N.W.2d 663

Ronald FRANKS, Appellant, v. Everett KOHL, Errol A. Montgomery, and the City of Cedar Rapids, a Municipal Corporation, Appellees.

No. 62959.

Supreme Court of Iowa.

Dec. 19, 1979.

John T. Nolan and Marc B. Moen of Lucas, Nolan & Bohanan, Iowa City, for appellant.

Robert C. Tilden and Iris E. Muchmore of Simmons, Perrine, Albright & Ellwood, Cedar Rapids, for appellees Kohl and Montgomery.

Timothy S. White and James A. Piersall of White, Wenzel & Piersall, Cedar Rapids, for appellee city.

Considered by LeGRAND, P. J., and REES, UHLENHOPP, HARRIS, and McGIVERIN, JJ.

UHLENHOPP, Justice.

This appeal involves the propriety of a summary judgment for defendants Everett Kohl, Errol A. Montgomery, and the City of Cedar Rapids, in a personal injury action brought by plaintiff Ronald Franks.

The documents in the case which were presented to the district court and to us disclose that Franks, an employee of the city, was riding on one of its garbage trucks driven by co-employee Kohl. Montgomery, another city employee, had charge of the placement of street signs in the city. Franks alleges that Kohl was grossly negligent in driving to the left side of a street, bringing Franks into collision with a street sign and injuring him, and that Montgomery was grossly negligent in the placement of the sign. At the time of the district court hearing Franks had received $20,000 in workers' compensation for his injuries.

Franks did not allege in his petition that he gave the written notice prescribed by section 613A.5, The Code 1979, nor does the record disclose such notice. Defendants stated in their resistance that Frank did not give notice.

Defendants filed a motion for summary judgment. After hearing, the district court sustained the motion and entered judgment for defendants. Franks appealed.

The issues Franks raises on appeal differ as to the defendants. We therefore first take up Franks' action as it pertains to the city, and then address his action as it pertains to Kohl and Montgomery.

ACTION AGAINST CITY

I. Notice requirement. The city contends that Franks' action against it must be dismissed (1) because Franks failed to give the required notice under section 613A.5 or, in any event, (2) because the Paragraph 1 of section 613A.1 of the Code defines "municipality" thus:

action does not come within chapter 613A of the Code, our local governmental tort claims act, since Franks received workers' compensation. See § 613A.4(1). We proceed no farther than the section 613A.5 contention. Under chapter 613A the onus is on claimants to plead and prove substantial compliance with the notice requirement of that section. Lattimer v. Frese, 246 N.W.2d 255, 257-58 (Iowa 1976); Bennett v. Ida County, 203 N.W.2d 228, 236 (Iowa 1972).

"Municipality " means city, county, township, school district, and any other unit of local government.

Paragraph 3 of the same section defines "tort" as follows:

"Tort " means every civil wrong which results in wrongful death or injury to person or injury to property or injury to personal or property rights and includes but is not restricted to actions based upon negligence; error or omission; nuisance; breach of duty, whether statutory or other duty or denial or impairment of any right under any constitutional provision, statute or rule of law.

The first paragraph of section 613A.2 provides:

Except as otherwise provided in this chapter, every municipality is subject to liability for its torts and those of its officers, employees, and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function.

As to time limitations, section 613A.5 requires:

Every person who claims damages from any municipality or any officer, employee or agent of a municipality for or on account of any wrongful death, loss or injury within the scope of section 613A.2 or section 613A.8 (duty of municipality to defend and indemnify its officers, employees, and agents) or under common law shall commence an action therefor within six months, unless said person shall cause to be presented to the governing body of the municipality within sixty days after the alleged wrongful death, loss or injury a written notice stating the time, place, and circumstances thereof and the amount of compensation or other relief demanded. Failure to state time or place or circumstances or the amount of compensation or other relief demanded shall not invalidate the notice; providing the claimant shall furnish full information within fifteen days after demand by the municipality. No action therefor shall be maintained unless such notice has been given and unless the action is commenced within two years after such notice. The time for giving such notice shall include a reasonable length of time, not to exceed ninety days, during which the person injured is incapacitated by his injury from giving such notice.

Franks did not show that he gave the written notice required by section 613A.5.

II. Avoidance of notice requirement. Franks claims that he was not required to give the section 613A.5 notice in order to hold the city. He first asserts that the city's own employees were involved in the incident on both sides, that the city actually knew of the incident without a written notice and could investigate it, and that the city thus suffered no prejudice from absence of written notice; hence on broad considerations of justice we should dispense with section 613A.5 notice here. In support of his argument he cites such decisions as Sprung v. Rasmussen, 180 N.W.2d 430, 433 (Iowa 1970), where we stated that courts do not favor the defense of limitations, and Boyer v. Iowa High School Athletic Association, 256 Iowa 337, 358, 127 N.W.2d 606, 618 (1964), where this court stood four-to-five for abrogating sovereign immunity before the General Assembly did so.

Franks' broad approach might be persuasive were we dealing with the application of a common-law principle, but we are not. The General Assembly took the subject of municipal tort liability in hand when it enacted chapter 613A. One of the requirements Due largely to the language of their particular notice statutes, some states have excepted municipal-employee claimants from the coverage of their notice requirements. See 56 Am.Jur.2d Municipal Corporations § 689, at 733 (1971); Annot., 98 A.L.R. 522 (1935). Other states, which have broad-language notice statutes like our own, have held that municipal-employee claimants are covered by the notice requirement. Williams v. City of Jacksonville, 118 Fla. 671, 682, 160 So. 15, 20 (1935); Condon v. City of Chicago, 249 Ill. 596, 598, 94 N.E. 976, 977-78 (1911); Davis v. City of El Dorado, 126 Kan. 153, 156, 267 P. 7, 8 (1928); Cawthorn v. City of Houston, 231 S.W. 701, 704 (Tex.Ct.App.1921). The language of our section 613A.5 is that "Every Person who claims damages" shall commence action within six months or give the sixty-day notice. We can hardly except municipal-employee claimants without, in effect, amending this language. That the General Assembly contemplated municipal-employee claimants would be covered by chapter 613A is evident from section 613A.4(1) excepting one class of such claims, those covered by workers' compensation: "The liability imposed by section 613A.2 shall have no application to . . . Any claim By an employee of the municipality which is covered by the Iowa workers' compensation law." (Emphasis added.)

it imposed is written notice. We have been liberal in applying the requirement so long as, under the record before us, we could conscientiously say that the governing body was given written notice of the claim in substantial compliance with the statute. E. g., Cook v. City of Council Bluffs, 264 N.W.2d 784, 787 (Iowa 1978) (letter describing incident mailed to councilman); Vermeer v. Sneller, 190 N.W.2d 389, 393-95 (Iowa 1971) (insurance agent, authorized by district to receive claims, prepared report of time, place, and circumstances of injury on behalf of claimant). But we have not dispensed with substantial compliance with section 613A.5 by written notice, and that section makes no distinction between cases involving both city-employee claimants and tort-feasors, as here, and the usual cases involving only city-employee tortfeasors.

Some jurisdictions excepting municipal-employee claimants from written notice requirements have also relied on the municipality's actual knowledge of the incident. We have stated however that actual knowledge by the governmental body does not supplant section 613A.5 written notice of claim. "The knowledge on the part of the school officials and employees certainly cannot be construed as substantial compliance with the notice requirements of the statute. We are not informed as to the substance of the verbal notification to the superintendent by the student's mother, but in any event we are not prepared to say such verbal notification constituted substantial compliance with a statute clearly and specifically requiring written notice." Shearer v. Perry Community School District, 236 N.W.2d 688, 693-94 (Iowa 1975). Cf. Arnold v. Lang, 259 N.W.2d 749, 752 (Iowa 1977) (dramshop case).

Franks asserts, second, that section 613A.5, when applied to his claim against the city, denies him equal protection and due process of law. We have addressed that question before and held that the section is valid with respect to a claim against a city. Shearer, 236 N.W.2d at 693 (equal protection and due process); Lunday v. Vogelmann, 213 N.W.2d 904, 908 (Iowa 1973). We thoroughly considered the constitutional issues in those decisions. We adhere to those pronouncements and find no necessity to repeat the analysis.

We take the present record as the parties made it. The record does not show compliance with section 613A.5. The district court was correct in entering summary judgment for the city.

ACTION AGAINST CITY EMPLOYEES

Franks alleges...