Minie v. Hudson
| Decision Date | 11 March 1997 |
| Docket Number | No. 86211,86211 |
| Citation | 934 P.2d 1082,1997 OK 26 |
| Parties | Therin Edward MINIE and Diane Minie, husband and wife, Plaintiffs, v. Ray E. HUDSON and Corrine Dean, Appellants/Third Party Plaintiffs, v. CITY OF OKMULGEE and County of Okmulgee, Appellees/Third Party Defendants. |
| Court | Oklahoma Supreme Court |
Samuel J. Schiller, Tulsa, for Appellants/Third Party Plaintiffs.
C. Bart Fite, Muskogee, for Appellee/Third Party Defendant, City of Okmulgee.
Thomas C. Guilioli, Okmulgee, for Appellee/Third Party Defendant, County of Okmulgee.
Two questions are presented on certiorari: 1) whether the verbal notice of claim communicated to the City was valid under the Tort Claims Act; and 2) whether, once the County began to clear Hudson's drainage system, it had a duty to complete the job with due care. We find that: 1) the clear and mandatory language of 51 O.S.Supp.1992 § 156(D) 1 requires that notice of a claim against a political subdivision be presented in writing; and 2) the County had a duty to complete its work, undertaken pursuant to contract, with reasonable care and in a non-negligent manner.
The appellant, Ray E. Hudson (Hudson/land owner), owns property in Okmulgee, Oklahoma, a portion of which contains a drainage channel to which Hudson asserts the appellee, County of Okmulgee (County), holds an easement. 2 Hudson alleges that in the fall of 1992, the appellee, City of Okmulgee (City), began dumping raw sewage from its lines creating a lake on his property in which floating condoms, sanitary napkins and human fecal matter accumulated. Because the drainage channel was blocked by trees, brush, dirt, and foreign materials, drainage from the property was inadequate and flooding problems increased.
After repeated requests for assistance to correct the flooding problems, 3 on October On May 10, 1994, Hudson filed a third-party petition 10 against the City and the County seeking damages and injunctive relief on nuisance and negligence theories. The City filed a motion to dismiss based on Hudson's failure to comply with the notice provisions of the Governmental Tort Claims Act, 51 O.S.1991 § 151 et seq. At the conclusion of the hearing on Hudson's request for temporary relief against the County, the trial court ruled in the County's favor finding that: 1) the County did not construct the drainage system; 2) the County had not accepted the easement; and 3) the County had no responsibility to maintain the drainage ditch. Based on these findings, the County filed a motion to dismiss. The trial court sustained the City's motion and it granted summary judgment to the County. Hudson's motion to reconsider was denied and he appealed. In an opinion designated for publication, the Court of Civil Appeals, Division I, affirmed the trial court on October 1, 1996. We granted certiorari on December 20, 1996.
19, 1992, the County entered into agreements with Hudson and other property owners to clear the drainage ditch. 4 The County made arrangements for some of the work to be done by inmates from the Taft Correctional Center. However, there were county personnel, tools and equipment on site when the work was undertaken. Although the agreement signed by Hudson and the County provided for the removal of trees, brush, and dirt from the drainage channel, 5 the project was abandoned before the ditch was completely cleared. 6 After a particularly heavy rainstorm caused more sewage to be dumped on his property, Hudson gave verbal notice 7 of his claim to Davis Harris, the City Manager, in September of 1993. 8 Although Hudson believes that he sent a written notification to the City at the same time that he filed a written claim with the County, no such written
notice has been located. Hudson's written notice of claim to the County was sent on September 17, 1993. 9
OF THE GOVERNMENTAL TORT CLAIMS ACT, 51 O.S.1991 § 151 ET SEQ.
Hudson asserts that a verbal communication to the City may be sufficient notice under the Governmental Tort Claims Act. He relies upon: 1) our decision in Duesterhaus v. City of Edmond, 634 P.2d 720, 722 (Okla.1981) in which we specifically held that written notice was not mandatory to satisfy the notice provisions of 51 O.S.Supp.1978 § 156(B); 11 and 2) upon the line of cases in which this Court has consistently held that substantial compliance with the notice provisions of the Tort Claims Act is sufficient when the governmental entity is not prejudiced, and the information provided satisfies the purposes of the statutory notice provisions. 12 The City argues that Duesterhaus and the cases in which the doctrine of substantial compliance developed have no application to the current version of 51 O.S.Supp.1992 § 156(D) which provides that a claim against a political subdivision "shall be in writing." 13
Duesterhaus was promulgated in 1981. The language relied upon by the City first appeared in § 156 in an amendment effective October 1, 1985. The issue of whether written notice is necessary to invoke the protections of the Tort Claims Act has not been presented to this Court since § 156(D) was amended. The statute now provides:
"A claim against a political subdivision shall be in writing and filed with the office of the clerk of the governing body."
It is presumed that the Legislature has expressed its intent in a statute and that it intended what it so expressed. 14 The determination of legislative intent controls judicial statutory interpretation; 15 however, it is unnecessary to apply rules of construction to discern legislative intent if the will is clearly expressed. 16
The statutory language leaves no doubt that the Legislature intended that claims against a political subdivision be submitted in writing. The statute specifically provides that a claim "shall be in writing." The use of "shall" by the Legislature is normally considered as a legislative mandate equivalent to the term "must", requiring interpretation as a command. 17 Further, when the Legislature amends a statute whose meaning has been settled by case law, it has expressed its intent to alter the law. 18 Before the Legislature amended § 156(D), its effect had been judicially determined in Duesterhaus holding that a written claim was unnecessary to substantially comply with the notice provisions of the Tort Claims Act. The Legislative intent to change the law is expressed in the amendment to § 156(D). We find that pursuant to the clear mandatory language of 51 O.S.Supp.1992 § 156(D), only a written claim is sufficient to invoke the protections of the Governmental Tort Claims Act, 51 O.S.1991 § 151 et seq. Hudson's verbal communication to the City does not substantially comply with this requirement.
ACTIONS IN IMPROVING THE DRAINAGE DITCH WERE OPERATIONAL AND
IMPOSED A DUTY TO COMPLETE THE WORK, UNDERTAKEN
PURSUANT TO CONTRACT, WITH REASONABLE
CARE AND IN A NON-NEGLIGENT MANNER.
Hudson contends that although the County may have been under no duty to clear the drainage ditch on his property, once it undertook the job pursuant to its written contract, it was required to complete it with due care. Although the County concedes that it attempted to assist landowners with recurring water problems by obtaining agreements to work on private property, 19 it argues that it was under no duty to make any improvements and that its acts are shielded by 51 O.S.Supp.1994 § 155(5) 20 exempting discretionary We agree with the County that it was under no duty to make public improvements to the landowners' drainage system. 21 Under § 155(5), a political subdivision is not liable for a loss or claim which results from the failure to perform some act or service which is in the discretion of the municipality or its employees. 22 Because the County is a political subdivision covered by the Tort Claims Act, this exemption applies. 23 Nevertheless, once the County made the decision to clear the drainage ditch its acts were no longer discretionary. Rather, they were ministerial or operational acts not falling within the discretionary exemption of the Tort Claims Act. 24 The County did not undertake the work on Hudson's property as a volunteer. Rather, the contract, executed between the County and the landowners, 25 specifically provides that: 1) it is undertaken "for the purpose of clearing trees & brush & dirt from the drainage ditch;" 2) no compensation will be payable to either party because the contract is "mutually beneficial;" and 3) the work will be performed "within 120 days" of the agreement. Once the decision was made and the work was begun on the drainage system pursuant to the contract, the County was required to use due care in completing the task. 26 We find that the County's actions in improving the drainage ditch were operational imposing a duty to complete the work, undertaken pursuant to contract, with reasonable care and in a non-negligent manner.
functions from the purview of the Tort Claims Act.
This Court may not, through the use of statutory construction, change, modify or amend the expressed intent of the Legislature. 27 The clear and mandatory language of 51 O.S.Supp.1992 § 156(D) 28 requires that notice of a claim to a political subdivision must be in writing. Hudson has been unable to present any evidence of a writing. Therefore, his notice to the City did not substantially comply with the notice provisions of the Governmental Tort Claims Act, 51 O.S.1991 § 151 et seq.
To support an actionable claim for negligence, a plaintiff must establish the concurrent existence of: a duty on the part of the defendant to protect the plaintiff from injury; a failure of the defendant to perform that duty; and an injury to the plaintiff resulting from the failure of the defendant. 29 We express no opinion on whether Hudson may recover against the County. However, because...
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