Hill v. District of Columbia, 8880.

• Decision Date: 07 October 1975
• Docket Number: No. 8880.,8880.
• Citation: 345 A.2d 867
• Parties: James Henry HILL, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

Page 867

345 A.2d 867

James Henry HILL, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 8880.

District of Columbia Court of Appeals.

Submitted March 26, 1975.

Decided October 7, 1975.

Harold A. Sakayan, Washington, D. C., was on the brief for appellant, C. Francis Murphy, Corp. Counsel, Louis P. Robbins, Principal Asst. Corp. Counsel, and Richard W. Barton and James N. Dulcan Asst., Corp. Counsel, Washington, D. C., were on the brief for appellee.

Before KELLY, GALLAGHER, and HARRIS, Associate Judge.

HARRIS, Associate Judge:

Appellate seeks reversal of a trail court order dismissing his suit against the District of Columbia on the ground that he did not give notice of his claim within six months as required by D.C.Code 1973 § 12-309.¹

Appellant was a patient at the District of Columbia General Hospital, being iterated for alcoholism and cirrhosis of the liver. It was necessary both so sedate him and to strap him to his bed. On June 8, 1973, a fire stared in his bed. Although it was extinguished quickly, appellate was unable to escape its effect. He suffered server burns to his right side, shoulder, and arm.

As a result of the burns, appellant was hospitalized for five additional months.² During that period the received large quantities of sedatives and had five skin graft operations. He was discharged form he hospital on November 6, 1973, but he returned to the hospital on an outpatient basis to receive physical therapy four times a week for some time thereafter.

In January of 1974, appellant obtain counsel. On January 23, 1974 — 46 Days past the six-month deadline — his attorney sent a notice of claim to the District of Columbia.

It is undisputed that written notice of the claim was not given within six months of the date on which appellant was injured. Appellant argues, however, that we should construe § 12-309so as not to bar his claim. He asserts that he was incapacitated and unable to give the requisite notice, due to he fault of the District of Columbia. He asserts that he was incapacitated and unable to five the requisite notice, due to he fault to the District of Columbia, during the five months he was in the hospital. We will assume, as the trial court did, that is true. Appellant was quite ill, and was heavily sedated for substantial period of time. Appellant further asserts that we should construe § 12-309 as affording him a reasonable period of time within which to furnish notice after he regained his ability to do so, and tat he did comply within a reasonable time by sending notice on January 23.

After giving notice, appellant filed his complaint, The government moved the dismiss the suit for noncompliance with § 12-309 before filing an answer. See Super.Ct.Civ.R. 12(c). Appellant opposed that motion, and the trial court held a hearing at which appellant submitted hospital records and his own oral testimony seeking to raise a genuine factual issue as to his inability to provide notice within the allotted six months, Since the trial court considered that evidence in addition to the pleading, it properly treated the motion in effect as one for summary judgment and disposed of it as provided in Superior Court Civil Rule 56. Rule 56(e) provides in part his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Our review is limited to determining whether the trial court properly concluded that appellant did not meet his burden of setting forth specific facts demonstrating a genuine issue for trial, and, if appellant did not, whether the trial court correctly applied § 12-309 to the undisputed facts.

Although appellant did present substantial evidence indicating that he was incapable of giving notice while he remained in the hospital, we agree with the trial court that he did not meet his burden of setting forth specific facts showing a genuine issue as to whether he reasonably could have complied with the statute during the month after he left the hospital, i. e., within the overall six-month notice period.

The nurse's notes which appellant submitted to the trial court indicate that he was ambulatory when discharged, and appellant testified that he returned to the hospital four times a week for physical therapy thereafter. He also testified that he "was feeling pretty bad" after he got out of the hospital. However, the only reason he gave for feeling had was that he had a stomach disorder — an ailment from which he apparently had suffered before being burned. Appellant additionally testified that he was "nervous" and "didn't know what to do" after leaving the hospital. We agree with the trial court that those allegations were not sufficient to raise a genuine issue as to whether a wrongful act of the hospital made appellant incapable of providing notice during the month remaining after he was discharged. The trial court concluded:

The result might have been different if the plaintiff had remained in the hospital under sedation for the entire six months or was not otherwise able to function. Plaintiff, having been discharged as an ambulatory out patient and not having produced any evidence as to his inability to comply with the statute, except his statement he felt poorly, the plaintiff has not met his burden and the issue must be decided against...