Kelly v. City of Rochester, 44518

• Decision Date: 13 June 1975
• Docket Number: No. 44518,44518
• Citation: 231 N.W.2d 275,304 Minn. 328
• Parties: Paul F. KELLY and Brian P. Kelly, by Paul F. Kelly, His Parent and Natural Guardian, Appellant, v. CITY OF ROCHESTER, Respondent.
• Court: Minnesota Supreme Court

Page 275

231 N.W.2d 275

304 Minn. 328

Paul F. KELLY and Brian P. Kelly, by Paul F. Kelly, His Parent and Natural Guardian, Appellant, v. CITY OF ROCHESTER, Respondent.

No. 44518.

Supreme Court of Minnesota.

June 13, 1975.

Rehearing Denied July 16, 1975.

Syllabus by the Court

Given the facts of this case, actual notice by responsible municipal employees of the pertinent facts surrounding an accident resulting in injury is sufficient to comply with the notice-of-claim requirements of Minn.St.1971, § 466.05, subd. 1.

West, Gowan, DeBoer & McIntosh, Rochester, for appellant.

Gerald H. Swanson, City Atty., Rochester, Mahoney, Dougherty & Mahoney, Richard P. Mahoney and Kenneth P. Gleason, Minneapolis, for respondent.

Heard before SHERAN, C.J., and OTIS, KELLY, TODD, and YETKA, JJ., and considered and decided by the court en banc.

KELLY, Justice.

These actions were brought by Paul F. Kelly, individually, and on behalf of his son, Brian, to recover damages for injuries sustained by Brian in a diving accident at a pool owned and operated by the city of Rochester. In each case, the trial court granted the defendant city's motion for summary judgment because of plaintiff's failure to comply with the provisions of Minn.St.1971, § 466.05, subd. 1, requiring notice of claims against municipalities to be given within 30 days of the accident from which the claim arises. ¹ We reverse.

Of the several issues raised by plaintiffs, we need only deal with one: Whether actual notice on the part of municipal employees of the accident fulfills the notice requirement of Minn.St.1971, § 466.05, subd. 1.

The facts are not disputed. On the evening of July 1, 1970, 16-year-old Brian Kelly was severely injured when he dived from the high diving board at the Soliders Field municipal swimming pool in Rochester. Brian struck his head on the bottom of the pool, with the result that he suffered immediate and permanent paralysis from the neck down. The accident took place in the presence of Linda Dorschner, one of the lifeguards, who assisted in removing Brian from the water and comforting him until the ambulance arrived.

A few days following the accident, pursuant to rules and regulations of the city's recreation department governing accidents, Ms. Dorschner prepared and filed with Roger Lowe, the head of the recreation department, a written report of the accident. This report, setting forth the name and address of the injured person and the date, time, place, and circumstances surrounding the accident, was prepared at the personal request of Mr. Lowe.

On October 20, 1970, more than 30 days after the incident resulting in Brian's injury, a formal, written notice of claims on behalf of Brian and his father was filed with the Rochester Common Council, the contents of which are consistent with § 466.05, subd. 1. These actions were subsequently commenced on October 12, 1971.

In past cases this court has taken a strict stance on the requirements of timeliness and manner of service of the 30-day notice of claim under Minn.St.1971, § 466.05, subd. 1. Although this time limit is admittedly arbitrary and has led to harsh results where the injured party has no knowledge that notice must be filed and his claim is barred, we nevertheless are constrained to sustain this portion of the statute, despite our misgivings as to its constitutional validity. We leave to future cases the determination of whether the notice requirement violates due process of law, as a denial of a vested right of redress for an injury. ²

However, in areas other than timeliness, we have given the statute a liberal construction so as not to deny recovery based solely on a formal technicality. Such was the case in Olander v. Sperry & Hutchinson Co., 293 Minn. 162, 197 N.W.2d 438 (1972), where we held that substantial compliance with respect to the adequacy of a description in the notice of the time, place and circumstances surrounding the injury was sufficient under the statute. We stated that '* * * except for the elements of timeliness or manner of service, substantial compliance with the provisions of § 466.05 is all that is required.' 293 Minn. 169, 197 N.W.2d 442.

This holding recognized the fact that the underlying purpose of the notice-of-claim statute would be achieved by substantial compliance with the statutory requirements. This purpose was set forth in Hirth v. Village of Long Prairie, 274 Minn. 76, 79, 143 N.W.2d 205, 207 (1966), as follows:

'* * * (T)o protect against dissipation of public funds by requiring that the municipality be promptly furnished with information concerning a claim against it so that full opportunity is provided to investigate it, to settle those of merit without litigation, and to correct any deficiency in municipal functions revealed by the occurrence. By timely service of notice, the municipality is also afforded protection against stale or fraudulent claims or the connivance of corrupt employees or officials.'

Then, in Seifert v. City of Minneapolis, 298 Minn. 35, 213 N.W.2d 605 (1973), we held that substantial compliance as to the manner of service of a written claim notice was sufficient. In that case notice was given to a city alderman and we viewed that action as fulfilling the purpose of the statute, recognizing that the notice-of-claim provision does not prescribe a single or exclusive manner of service. ³ The holding of the case bears heavily on the present situation:

'* * * (W)e hold the purpose of the statute is satisfied once service of the notice is made upon a member of the city council Or any other responsible official reasonably likely to place such notice before the governing body at its next meeting. In so far as the Aronson case (Aronson v. City of St. Paul, 193 Minn. 34, 257 N.W. 662 (1934)) or any prior decisions of this court are inconsistent with this standard, they are overruled.' 298 Minn. 42, 213 N.W.2d 609. (Italics supplied.)

Most recently, in Jenkins v. Board of Education of Minneapolis Special School Dist. No. 1, Minn., 228 N.W.2d 265 (1975),...