Mills v. American Playground Device Co.

• Decision Date: 18 June 1980
• Docket Number: No. 2-1278A425,2-1278A425
• Citation: 405 N.E.2d 621
• Parties: James MILLS, Barbara Mills, and Dennis Mills, Appellants (Plaintiffs Below), v. AMERICAN PLAYGROUND DEVICE CO. and City of Gas City, Indiana, Appellees(Defendants Below).
• Court: Indiana Appellate Court

Page 621

405 N.E.2d 621

James MILLS, Barbara Mills, and Dennis Mills, Appellants (Plaintiffs Below), v. AMERICAN PLAYGROUND DEVICE CO. and City of Gas City,

Indiana, Appellees(Defendants Below).

No. 2-1278A425.

Court of Appeals of Indiana, Second District.

June 18, 1980.

Wade R. Bosley and James N. Clevenger, Marion, for appellants.

Herbert A. Spitzer, Jr., Phillip E. Stephenson, Browne, Torrance, Spitzer, Herriman & Browne, Marion, for appellees.

SHIELDS, Judge.

Appellants James, Barbara, and Dennis Mills (Mills) appeal from the trial court's judgment granting appellee City of Gas City's (City) motion for summary judgment and dismissing the action against it. Since the trial court did not specify the legal grounds for its judgment, Mills address on appeal each of the issues raised by City in its motion for summary judgment, as stated below:

1. Whether Notice of Claim satisfied the statutory notice requirement;

2. Whether City was immune from liability pursuant to the governmental immunity provisions of the Indiana Tort Claims Act; and

3. Whether Mills have stated a claim upon which relief can be granted.

The record discloses on September 8, 1974 Dennis Mills, the 14 year old son of James and Barbara Mills, was injured when he fell from a slide manufactured by American Playground Device Company and purchased and installed by City. Dennis was attending a Boy Scout camporee in the Gas City Park when, between organized activities, he was playing on the slide and fell to the base below. Dennis was treated for a broken arm, concussion, broken nose, meningitis, sinus difficulties, and hearing loss.

December 11, 1974, 44 days after the incident Mills sent the following Notice of Claim to City:

"Mr. Eugene Linn

Mayor of Gas City

East Main Street

Gas City, Indiana 46933

Re: Mills vs. City of Gas City

Dear Gene:

This office represents Mr. and Mrs. James Mills and their son, Dennis, in a personal injury claim arising out of injuries that Dennis sustained on September 28, 1974 in a fall from a slide in the Gas City Park. This letter shall constitute formal notice that Dennis and his parents are making a claim against the City of Gas City, Indiana.

At the present time we are unable to determine the extent of personal injuries suffered by Dennis and we are unable to determine the amount of damages that Mr. and Mrs. Mills and Dennis will be seeking. Once this information is available to us we will convey it to you or your representative.

At the time of the incident described above Mr. and Mrs. Mills and their son lived at 701 South Main Street, Jonesboro, Indiana and they still reside at this address.

After an examination of the slide in question, I feel that there is a good possibility of a lawsuit against its manufacturer and/or designer. We would like to know when the slide was purchased by the city, from whom it was purchased and the name and address of the manufacturer, if known. If the city received any literature or instructions promoting the slide or accompanying it upon delivery we also would like to have copies of any such literature.

Since this claim is pending, the slide should not be destroyed or sold, but I strongly suggest that you remove the slide from its present location. I feel that this 18 foot high, improperly designed piece of playground equipment constitutes a menace to the youngsters of Gas City and should be eliminated before more tragic incidents occur. If the city should decide to move the slide we should be notified so we can be present when it is moved.

Please turn the enclosed copy of this letter over to Gas City's public liability insurance carrier and have them contact us at once.

Thank you."

February 11, 1975 a second letter was sent to City indicating investigation of the claim was continuing.

I

As a procedural precedent to bringing suit against City, the Mills were required to give City written notice of their claim within 180 days of the alleged incident. IC 34-4-16.5-7 (Burns Ed. 1979 Supp.). City of Indianapolis v. Satz, (1978) Ind., 377 N.E.2d 623. Compliance with the notice requirement is a legal question for the court. City of Indianapolis v. Satz, supra. On review we must determine whether the December 11 letter is, as a matter of law, sufficient to constitute substantial compliance with the statute.

Mills contend their December 11 letter constituted "notice" within the meaning of IC 34-4-16.5-9 (Burns Ed. 1979 Supp.).

"The notice required by sections 6, 7, and 8 (34-4-16.5-6 34-4-16.5-8) of this chapter shall describe in a short and plain statement the facts on which the claim is based. The statement shall include the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice."

The letter presents the circumstances of the loss (a fall from a slide), the time and place (September 28 at Gas City Park) and the known names of persons involved (Dennis Mills, City, and American). At issue is whether the letter adequately describes the extent of loss and amount of damages sought. The letter is not void of reference to loss or damages. It reveals the existence of injuries, but states the extent of loss is unascertainable at the current time and, therefore, damages are undeterminable.

Substantial compliance with the notice requirement is sufficient, Galbreath v. City of Indianapolis, (1970) 253 Ind. 472, 255 N.E.2d 225, and such occurs when the purposes of the notice provision are fully satisfied. Delaware County v. Powell, (1979) Ind., 393 N.E.2d 190. Galbreath v. City of Indianapolis, supra, has been cited with continuing approval on the purpose of the notice statute:

"The purpose of the notice statute being to advise the city of the accident so that it may promptly investigate the surrounding circumstances. We see no need to endorse a policy which renders the statute a trap for the unwary where such purpose has in fact been satisfied." 253 Ind. at 479, 480, 255 N.E.2d at 229.

The key information necessary to an investigation is the nature of the incident, the place of the injury, and the party injured. Given this, City could reasonably anticipate the general type of Dennis's injuries and, at least, had an adequate investigatory base from which to work.

A written notice, similar but even less descriptive than the December 11 letter, was found to substantially comply with the statutory purpose in Brown v. City of South Bend, (1971) 148 Ind.App. 436, 444, 267 N.E.2d 400, 403.

"YOU ARE HEREBY NOTIFIED:

"That on or about the 6th day of October, 1967, at approximately 6:30 p. m. at the corner of South and Scott Streets on the said Scott Street, an accident did occur wherein Norris F. Brown the son of Gertie B. Brown was injured. That at the aforementioned place and time the City of South Bend, Indiana, by and through its employees and other agencies did allow a hazardous condition to exist creating an attractive nuisance and thereby drawing to the same the said minor Norris F. Brown enabling him to injure himself as the direct and approximate result of the negligence and nuisance of the aforementioned. That the said negligence and nuisance created by the City of South Bend, Indiana, consisted of among other things, allowing sewer piping which was unguarded and unsecured to lie open in the street thereby attracting children to play upon the same and injure themselves."

The Brown court found that the notice, while not a model for legal draftsmen, did not mislead the city and did allow the prompt investigation to which the city was entitled.

Further, we note Indiana's liberal interpretation of the injury and damages description, as stated in Volk v. City of Michigan City, (1941) 109 Ind.App. 70, 73, 32 N.E.2d 724, 725.

"In passing upon the proper construction to be given this statute, our court has repeatedly held that: 'In so far as concerns the requirement that the notice be given, and within the time specified, and to the proper officers, the statute is strictly construed. * * * But on the question of whether or not a notice in fact given is sufficiently definite as to the time, place, nature, etc., of the injury, the rule of liberal construction is generally adopted by the courts.' City of East Chicago v. Gilbert, (1915) 59 Ind.App. 613, 621, 108 N.E.2d 32, 109 N.E. 404; City of Gary v. McNulty, (1935) 99 Ind.App. 641, 194 N.E. 193."

Thus, given the uncertainty as to the permanency and the exact nature of the injury in the initial stages of a personal injury case, it would be difficult, if not impossible, to state the full extent of injuries in the Notice of Claim. Mills acknowledged the loss and damages requirement, and substantially complied with it by stating the existence of a personal injury loss, of which the extent and damages were yet unascertainable.

City makes a reasoned, but unacceptable, argument that the settlement provisions of the Tort Claims Act, IC 34-4-16.5-10 and 12 (Burns Ed. 1979) expanded the purpose of the notice provision to include claim settlement.

Ind.Code 34-4-16.5-10:

"Within ninety (90) days of the filing of a claim the governmental entity shall notify the claimant in writing of its approval or denial of the claim. A claim is denied if the governmental entity fails to approve the claim in its entirety within ninety (90) days, unless the parties have reached a settlement before the expiration of that period."

Ind.Code 34-4-16.5-12:

"A person may not initiate a suit against a governmental entity unless his claim has been denied in whole or in part."

The legislative intent to further settlement of undisputed claims, City contends, is dependent upon greater specificity of loss and damages in the notice.

We do not find that legislative intent to further settlement is realized through a more...