Lafitte v. State Highway Dept., 93CA1725

• Decision Date: 06 October 1994
• Docket Number: No. 93CA1725,93CA1725
• Parties: Louise LAFITTE, Surviving Spouse of Patrick Carter, Decedent, Plaintiff-Appellant, v. STATE HIGHWAY DEPARTMENT OF the STATE OF COLORADO, Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 338

885 P.2d 338

Louise LAFITTE, Surviving Spouse of Patrick Carter, Decedent, Plaintiff-Appellant, v. STATE HIGHWAY DEPARTMENT OF the STATE OF COLORADO, Defendant-Appellee.

No. 93CA1725.

Colorado Court of Appeals,

Div. III.

Oct. 6, 1994.

D. Shackelford Shipp, Aspen, for plaintiff-appellant.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Thomas C. Sullivan, Asst. Atty. Gen., Denver, for defendant-appellee.

Opinion by Judge JONES.

In this action to recover damages for wrongful death and loss of consortium, plaintiff, Louise Lafitte, surviving spouse of Patrick Carter, decedent, appeals from the summary judgment in favor of defendant, the State Highway Department. We affirm in part, reverse in part, and remand for further proceedings.

Decedent was killed in a motorcycle accident on a state highway on August 30, 1989. Although the record does not contain a copy of the complaint, plaintiff's notice of claim dated February 20, 1990, alleged that the motorcycle overturned as the result of a dangerous condition of a public highway which physically interfered with the movement of traffic on the paved portion of the road. It further alleged that defendant had permitted the existence of a sink hole or depression in the pavement that had not been properly filled during routine highway maintenance at that location.

Defendant filed a motion for summary judgment on three grounds related to the Colorado Governmental Immunity Act. First, defendant asserted that plaintiff had failed to comply with the Act's jurisdictional notice requirement within 180 days of the accident. Second, it asserted that sovereign immunity had not been waived for a public entity's failure to post warning signs. Finally, it urged that plaintiff's injuries were not caused by a dangerous condition of a public highway.

Plaintiff filed a response opposing the motion, with supporting exhibits, and defendant filed a reply. After considering these submissions, the trial court granted defendant's motion. In so ruling, the court stated only that its judgment was based upon all three grounds stated in the motion.

I.

On appeal, plaintiff contends that the trial court erred in concluding that she had failed to comply with the jurisdictional notice requirements of § 24-10-109, C.R.S. (1988 Repl.Vol. 10A). Under the unique circumstances presented here, we agree and, therefore, reverse this portion of the judgment.

As pertinent here, § 24-10-109(1), C.R.S. (1988 Repl.Vol. 10A) requires any person claiming to have suffered injury by a public entity to file a written notice within 180 days after the date of the discovery of the injury. Further, § 24-10-109(3), C.R.S. (1988 Repl.Vol. 10A) provides that such notice "shall be effective upon mailing by registered mail or upon personal service."

The supreme court has held that the notice requirements of § 24-10-109 are designed to permit a public entity to conduct a prompt investigation of the claim and thereby remedy a dangerous condition, to make adequate fiscal arrangements to meet any potential liability, and to prepare a defense to the claim. Woodsmall v. Regional Transportation District, 800 P.2d 63 (Colo.1990). The Woodsmall court also declared that the notice provisions serve another public purpose, namely, to permit injured claimants to seek redress for injuries caused by a public entity.

In construing § 24-10-109, the supreme court has held that the mandatory notice is effective upon mailing. See Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993). Further, this court has held that first-class mail is sufficient and that the notice need not be sent by registered or certified mail. See Blue v. Boss, 781 P.2d 128 (Colo.App.1989); see also Woodsmall v. Regional Transportation District, supra.

In addition, the supreme court has declared that the 1986 amendments to § 24-10-109 were intended to create a standard of "substantial" (meaning more than minimal but less than absolute) compliance with the notice requirements, saying:

We must be mindful of the consequences of a construction that would impose a standard of absolute compliance on a claimant who has been injured by a public entity. A rule of absolute compliance would require the dismissal of a claim when a claimant, within 180 days after the discovery of an injury, makes a good faith effort to satisfy the notice requirements but inadvertently omits a minor detail, or makes an error with respect to such detail, notwithstanding the fact that such omission or error cannot prejudice the public entity in the least.... Nothing in the legislative comments on the 1986 amendment suggests that the General Assembly intended such a formalistic construction of the notice requirement.

Woodsmall v. Regional Transportation District, supra, 800 P.2d at 68.

Finally, the Woodsmall court stated that, in determining whether a claimant has substantially complied with the notice requirement, a court may consider whether and to what extent the public entity has been adversely affected in its ability to defend against the claim by reason of any omission or error in the notice.

Here, the undisputed facts are as follows. Decedent's body was discovered at the side of the highway on August 31, 1989. Plaintiff's notice of claim, properly addressed to the Attorney General, was mailed and postmarked on February 21, 1990, less than 180 days after plaintiff discovered her husband's death. However, although the envelope was prepared for "certified mail," less than the appropriate amount of postage was affixed to the envelope. Consequently, on March 9, 1990, the post office returned the envelope to plaintiff's counsel with the notation that the addressee had refused to pay the additional postage due. Plaintiff's counsel re-sent the notice by certified mail, and it was officially accepted by the Attorney General on March 22, 1990.

It was also undisputed that another motorcycle accident had occurred on the same state highway at the same location two days before decedent was fatally injured and that defendant had resurfaced the section of pavement on the same day decedent's body was discovered.

Under these circumstances, we conclude that the delay in receipt of the notice due to the lack of additional postage did not prejudice defendant in its ability to conduct a prompt investigation, remedy a dangerous condition, or defend against the claim.

Accordingly, inasmuch as plaintiff's counsel mailed the notice within 180 days after plaintiff discovered her injury, we conclude that plaintiff substantially complied with the notice requirements of §§ 24-10-109(1) & 24-10-109(3) and that the trial court erred in ruling that the delay caused by plaintiff's failure to affix proper postage...