O'Neil v. City of Parkersburg

• Decision Date: 20 September 1977
• Docket Number: 13758,Nos. 13708,s. 13708
• Parties: Mary Helen O'NEIL et al. v. The CITY OF PARKERSBURG etc., et al. Doyle H. HENDRICKSON, Administrator, etc. v. The CITY OF PARKERSBURG etc., et al.
• Court: West Virginia Supreme Court

Page 504

237 S.E.2d 504

160 W.Va. 694

Mary Helen O'NEIL et al. v. The CITY OF PARKERSBURG etc., et al.

Doyle H. HENDRICKSON, Administrator, etc. v. The CITY OF PARKERSBURG etc., et al.

Nos. 13708, 13758.

Supreme Court of Appeals of West Virginia.

Sept. 20, 1977.

Syllabus by the Court

1. A legislative act which arbitrarily establishes diverse treatment for the members of a natural class results in invidious discrimination and where such treatment or classification bears no reasonable relationship to the purpose of the act, such act violates the equal protection and due process clauses of our federal and state constitutions.

2. The notice of claim provision provided for in W.Va.Code, 8-12-20, as enacted by the legislature in 1969, is violative of the equal protection and due process clauses of our state and federal constitutions and is unconstitutional.

3. To the extent that Higginbotham v. City of Charleston, W.Va., 204 S.E.2d 1 (1974); Simmons v. The City of Bluefield, W.Va., 225 S.E.2d 202 (1975); Thomas v. The City of South Charleston, 148 W.Va. 577, 136 S.E.2d 788 (1964); Thompson v. City of Charleston, 118 W.Va. 391, 191 S.E. 547 (1937); and White v. The City of Charleston, 98 W.Va. 143, 126 S.E. 705 (1925) are inconsistent with the decision in these cases, they are overruled.

McCamic & McCamic, Jeremy C. McCamic and William E. Parsons, II, Wheeling, for appellants.

Cather & Renner, Diana Everett, Parkersburg, for appellees.

CAPLAN, Chief Justice:

In these appeals the Court is not called upon to decide questions relative to the alleged negligence of the defendants. Rather, the issue is whether the circuit court erred in dismissing the complaints as to the City of Parkersburg, the hospital and its trustees because the notice of claim, provided in W.Va.Code, 1931, 8-12-20, as amended, was not filed as required in said code provision. Thus, the sole issue, dispositive of these cases, is whether the notice of claim provision of said statute is violative of the equal protection and due process clauses of our federal and state constitutions.

Being of the opinion that the requirements of that statute do constitute such constitutional violations, we do not reach the other questions raised and we reverse the judgments of the circuit court and remand both cases for trial.

In the posture of these cases it is not necessary to consider in any detail the factual situations which led to the institution of these actions. It is sufficient for the purpose of these appeals to note that in the complaints filed in the respective cases, plaintiff Mary Helen O'Neil was alleged to have been injured by the negligence of defendant hospital and that plaintiff Doyle H. Hendrickson's decedent, Betty L. Hendrickson, was also alleged to have been injured by that defendant's negligence, from which alleged injuries she subsequently died. It is undisputed that Camden Clark Memorial Hospital is a municipal facility under the general supervision and control of the City of Parkersburg.

Alleging that the plaintiffs failed to give the City of Parkersburg timely notice of their claims as required by W.Va.Code, 1931, 8-12-20, as amended, certain defendants, under Rule 12(b) of the West Virginia Rules of Civil Procedure, moved that the complaints be dismissed. The court, finding no just reason for delay in the entry of judgment, granted the motions (in each case) and the complaints against defendants, The City of Parkersburg, Camden Clark Memorial Hospital and the trustees of said hospital, were dismissed with prejudice. These appeals followed.

The statute with which we are concerned, W.Va.Code, 1931, 8-12-20, as amended, and which was in effect on the date of the alleged injuries reads as follows:

Notwithstanding any other provision of this Code or any charter provision to the contrary, no action shall be maintained against any municipality for injury to any person or property or for wrongful death alleged to have been sustained by reason of the negligence of the municipality, or of any officer, agent or employee thereof, unless a written verified statement by the claimant, his agent, attorney or representative of the nature of the claim and of the time and place at which the injury is alleged to have occurred or been received shall have been filed with the mayor, recorder or municipal attorney within thirty days after such cause of action shall have accrued. The cause of action shall be deemed to have accrued on the date of the sustaining of the injury, except that where death results therefrom the time for the personal representative to give notice shall run from the date of death. An action at law for damages for injury to any person or property or for wrongful death shall not be commenced until the expiration of thirty days after the filing of the notice provided for in this section.

The existence of such notice of claim provisions in statutes and ordinances relating to municipalities is widespread, almost universal. The origins and underlying purposes of such provisions are rooted in the doctrine of sovereign immunity. That doctrine, embodying the concept that government should not be answerable for tort liability, was introduced into the American judicial system from the English common law. While the doctrine is bolstered by statute and, in our jurisdiction concerning the state, by constitutional mandate, it has in the twentieth century been subjected to severe criticism. Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604 (1945); Haney v. Lexington, 386 S.W.2d 738 (Ky., 1964); Britten v. City of Eau Claire, 260 Wis. 382, 51 N.W.2d 30 (1952). The principal reason for this criticism is the concept of American justice which pronounces that for every wrong there is a remedy. It is incompatible with this concept to deprive a wrongfully injured party of a remedy merely because the wrongdoer wears a shield of governmental immunity. See Muskopf v. Corning Hosp. Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (1961); and Spanel v. Mounds View School Dist., 264 Minn. 279, 118 N.W.2d 795 (1962). As succinctly said by Justice Rutledge, later a Justice of the United States Supreme Court: "We start with general principles. For negligent or tortious conduct liability is the rule. Immunity is the exception." President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810 (1942).

Just as the doctrine of municipal immunity has to some extent been modified and, in some jurisdictions including our own, abrogated completely by courts or legislatures, Long v. City of Weirton, W.Va., 214 S.E.2d 832 (1975), so have those entities acted to alleviate the injustices apparent in notice of claim provisions. See Minn.Stat.Ann. § 466.05 (1963) (claims against municipalities not barred for failure to demand certain relief); Pa.Stat.Ann. Tit. 53, § 5301 (1937) (court may allow reasonable excuses for failure to comply); Wis.Stat.Ann. § 895.43 (1963) (action not barred if plaintiff can show municipality had actual notice and was not prejudiced); and N.Y.Gen.Munic.Law § 50-e (McKinney 1965) (permits court, in its discretion, to excuse delays in filing notice against municipalities due to infancy, incapacity, death during filing period and other reasons). See also Higginbotham v. City of Charleston, W.Va., 204 S.E.2d 1 (1974); Simmons v. City of Bluefield, W.Va., 225 S.E.2d 202 (1975) (substantial compliance adequate); Webster v. City of Charlotte, 222 N.C. 321, 22 S.E.2d 900 (1942) (inability to comply strictly with statute has been recognized as an exception to rule); McDonald v. City of Spring Valley, 285 Ill. 52, 120 N.E. 476 (1918); Murphy v. Village of Ft. Edward, 213 N.Y. 397, 107 N.E. 716 (1915); Lazich v. Belanger, 111 Mont. 48, 105 P.2d 738 (1940) (cases establishing infancy as an excuse for noncompliance); City of Colorado Springs v. Colburn, 102 Colo. 483, 81 P.2d 397 (1938); City of Tulsa v. Wells, 79 Okl. 39, 191 P. 186 (1920) (mental or physical disability as excuse for noncompliance).

An examination of the foregoing authorities reveals many injustices resulting from the application of notice of claim provisions. Also, apparent in the opinions is a reluctance by the courts to strictly apply such provisions. The rationalization by many courts in refusing to require strict compliance shows that there is no sanctity to notice of claim provisions. We acknowledge that such provisions have been held to be valid in a majority of jurisdictions; however, it appears that the injustices inherent therein, the rationalizations by the courts and the consequent erosion of the requirements may herald a judicial reassessment of the validity of notice of claims, statutes and ordinances.

Notice of claim provisions have frequently been attacked in the courts as operating to deny due process and equal protection to private tort-feasors and to the victims of governmental torts. In the great majority of cases the courts have been reluctant to abolish the notice requirements, their rationale being two-fold. First, many decisions are based upon sovereign immunity; Brown v. Board of Trustees, 303 N.Y. 484, 104 N.E.2d 866 (1952); Brantley v. City of Dallas, 498 S.W.2d 452 (Tex.Civ.App.1973); and second, upon a finding of a rational basis for the legislative classification. Bituminous Cas. Corp. v. The City of Evansville, 191 F.2d 572 (7th Cir. 1951); Crumbley v. City of Jacksonville, 102 Fla. 408, 135 So. 885, affirmed on rehearing 138 So. 486 (1931). Inasmuch as this Court has abrogated the doctrine of sovereign immunity as applied to municipalities we need consider such immunity no further as a justification for notice of claim provisions.

Resisting the plaintiffs' assertion that the subject statute is violative of the due process and equal protection clauses of the state and federal constitutions, the appellees contend that the legislature, in enacting such statute, had a rational basis therefor. They set forth...