Lett v. State
| Decision Date | 01 March 1988 |
| Docket Number | No. 24A01-8704-CV-95,24A01-8704-CV-95 |
| Citation | 519 N.E.2d 749 |
| Parties | Gregory LETT, Plaintiff-Appellant, v. STATE of Indiana, the Indiana Department of Highways, John P. Isenbarger, Director of Indiana Department of Highways, Defendants-Appellees, and Tibor Kelemen, Defendant. |
| Court | Indiana Appellate Court |
Michael L. Tucker, Brannon & Hall Law Offices, Dayton, Ohio, David W. Dennis, Dennis, Reinke & Vertesch, Richmond, for plaintiff-appellant.
Linley E. Pearson, Atty. Gen., Kenneth M. Wahnsiedler, Deputy Atty. Gen., Indianapolis, for defendants-appellees.
Gregory Lett appeals from the Franklin Circuit Court's dismissal of his claim against the State of Indiana and its agents for failure to provide timely notice under the Indiana Tort Claims Act (hereinafter ITCA), Indiana Code sections 34-4-16.5-1 et seq. We affirm.
On September 17, 1983, Gregory Lett was involved in an accident on U.S. Route 52 in Franklin County, Indiana, while riding in a 1967 Plymouth Barracuda driven by defendant, Tibor Kelemen. Lett sustained extensive and severe injuries in the accident On January 31, 1984, Lett was transferred to St. Elizabeth Medical Center in Dayton, Ohio, Lett's home town. Initially, Lett was admitted to St. Elizabeth's rehabilitation unit. However, after nine (9) days Lett was transferred to the acute medical care unit for treatment of hypercalcemia. Lett returned to the rehabilitation unit on February 24, 1984. By August 1984, Lett almost was wheelchair independent. On August 31, 1984, Lett was released from St. Elizabeth in the care of his parents.
and was transported via "Lifeline" helicopter to Methodist Hospital in Indianapolis. Specifically, Lett suffered from multiple lacerations and fractures, including, fractures of the right ankle, left femur, and left arm, and a burst fracture of one of his lumbar vertebrae. The vertebrae fracture caused Lett's paraplegia. Initially, Lett underwent surgery to stabilize his condition. Thereafter, Lett underwent eight (8) additional surgeries while at Methodist. In addition to the surgeries, Lett was treated for a number of other medical complications, which included: acute renal failure, a psoas abscess, a neurogenic bladder, chronic fecal impaction, decubitis ulcers, and necrosis of the buttocks and low back. Due to the acute renal failure, Lett, in all probability, was disoriented and confused during the first four to five (4-5) weeks at Methodist. Lett also was depressed during this time period.
On December 11, 1984, Lett was rehospitalized due to an abscess on his buttock which caused an infection throughout his body. After treatment of the abscess and other complications, Lett was transferred to the rehabilitation unit on February 11, 1985. On February 28, 1985, Lett was placed back in the acute care unit and underwent surgery to remove several large kidney stones. On March 8, 1985, Lett was transferred back to the rehabilitation unit.
On March 13, 1985, Lett was released from St. Elizabeth and returned home. Thereafter, Lett obtained counsel in May of 1985. On June 4, 1985, Lett's attorney sent notice of Lett's claim to the Indiana Attorney General, the Director of the Indiana State Highway Commission, and the Director of the Indiana Flood Control and Water Resources Commission. The State denied Lett's claim, and on September 12, 1985, Lett filed suit against the State and Kelemen, which alleged that notice of claim was timely due to incompetency during the statutory period. On October 29, 1985, the State answered and raised the defense of failure to comply with the mandatory notice requirements of the ITCA, Ind.Code Sec. 34-4-16.5-6. On August 7, 1986, the Franklin Circuit Court conducted an evidentiary hearing involving the competency of Lett under Ind.Code Sec. 34-4-16.5-6. On January 13, 1987, the trial court determined that Lett failed to establish incompetence beyond August of 1984, and that notice was not provided within 180 days thereafter. Accordingly, the trial court issued an order dismissing his claims against the State. Lett appeals this determination and order.
Whether the trial court erred by determining Lett's incompetency ended by August 31, 1984, and by holding that Lett failed to file a timely notice of claim under the ITCA, Ind.Code Sec. 34-4-16.5-6.
Lett argues that the trial court erred by determining that he failed to establish he was incompetent beyond August 1984, and by holding that he failed to provide timely notice to the State. The claimant carries the burden of proving compliance with the ITCA's notice provisions. Thus, Lett, as claimant, appeals from a negative judgment. This court will reverse a negative judgment only if the trial court's decision is contrary to law. A decision is contrary to law if the evidence is without conflict and leads to but one conclusion which is opposite to that reached by the trial court. Dunn v. City of Indianapolis (1983), Ind.App., 451 N.E.2d 1122, 1125; Litzelswope v. Mitchell (1983), Ind.App., 451 N.E.2d 366, 369.
Under the ITCA a notice of claim must be provided to the State and governmental entities within 180 days of the occurrence of the loss. Ind.Code Sec. 34-4-16.5-6. Failure to provide and establish compliance with this required notice provision is a complete defense and bar to suit. Indiana Dept. of Pub. Welfare v. Clark (1985), Ind.App., 478 N.E.2d 699, 701 cert. denied 476 U.S. 1170, 106 S.Ct. 2893, 90 L.Ed.2d 980. However, the 180 day notice period may be extended due to incompetency. Dunn, at 1125; Scott County v. Stampler (1981), Ind.App., 425 N.E.2d 264, 265, trans. denied; Coghill v. Badger (1981), Ind.App., 418 N.E.2d 1201, 1207. Indiana Code section 34-4-16.5-8 provides as follows:
"Incompetents--Extension of time for filing notice of claim.--If a person is incompetent to give notice as required in section 6 [34-4-16.5-6] or 7 [34-4-16.5-7] of this chapter, his claim is barred unless notice is filed within one hundred eighty days after the incompetency is removed."
Further, incompetent is defined within the Act in Ind.Code Sec. 34-4-16.5-2(3), as follows:
" 'Incompetent' means a person who is under the age of eighteen years or is incapable by reason of insanity, mental illness, or other incapacity of either managing his property or caring for himself or both."
Thus, to extend the filing period, Lett had to establish that he was unable either to manage his affairs or take care of himself or both, and that he filed notice of a...
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