Orlowski v. City of South Bend
| Court | Court of Appeals of Indiana |
| Citation | 482 N.E.2d 1380 |
| Docket Number | No. 3-1184A312,3-1184A312 |
| Parties | Diane ORLOWSKI, as Administratrix of the Estate of James Gatchell, Deceased, and as mother and natural guardian of Amy and Angela Gatchell, Minors, Plaintiffs-Appellants, v. CITY OF SOUTH BEND, Indiana, Defendant-Appellee. |
| Decision Date | 02 October 1985 |
Page 1380
Gatchell, Deceased, and as mother and natural
guardian of Amy and Angela Gatchell,
Minors, Plaintiffs-Appellants,
v.
CITY OF SOUTH BEND, Indiana, Defendant-Appellee.
Third District.
Page 1381
Catherine M. Rohrs, David L. Matthews & Associates, South Bend, for plaintiffs-appellants.
Richard L. Hill, City Atty., Robert C. Rosenfeld, Deputy City Atty., South Bend, for defendant-appellee.
HOFFMAN, Judge.
Plaintiff-Appellant Diane Orlowski (Orlowski) as natural guardian of the minor children of James Gatchell, deceased, appeals a summary judgment entered in favor of the City of South Bend, Indiana (South Bend). The trial court found that Orlowski's notice of claim, 1 as provided for in the Indiana Tort Claims Act, 2 failed to satisfy statutory requirements.
The facts relevant to this appeal disclose that Orlowski mailed a notice of claim to South Bend and its mayor on May 13, 1983. South Bend did not respond to the notice within the 90-day period prescribed in IND.CODE Sec. 34-4-16.5-10. Under that statute, a failure to respond is deemed a denial of the claim and a suit for damages may be filed.
Orlowski filed suit for the wrongful death of James Gatchell on October 21, 1983. On November 2, 1983, counsel entered an appearance on behalf of South Bend. South Bend answered Orlowski's complaint on December 12, 1983, four days after Orlowski filed a motion for default judgment. In its answer, South Bend raised the affirmative defense that Orlowski's notice had not complied with the Indiana Tort Claims Act.
Alleging that the notice of claim was insufficient, South Bend filed a motion for summary judgment on July 18, 1984. The motion for summary judgment was granted on August 22, 1984. Orlowski then filed an amended notice of claim and a motion to correct errors on October 3, 1984.
Orlowski presents two issues for review:
(1) whether the court erred in ruling that the notice of claim was insufficient as a matter of law; and
(2) whether the court erred in denying Orlowski's motion for default.
When reviewing a summary judgment, this Court must construe all evidence in favor of the non-moving party. State and Sav. Bank of Monticello v. Meeker (1984), Ind.App., 469 N.E.2d 55. Whether a party has complied with the notice requirements of IND.CODE Sec. 34-4-16.5-9 is a question of law to be determined by the court prior to trial. Bd. of Aviation Com'rs v. Hestor (1985), Ind.App., 473 N.E.2d 151, 153.
The notice statute, IND.CODE Sec. 34-4-16.5-9, requires:
"a short and plain statement [of] 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."
In pertinent part the original notice of claim by Orlowski stated:
"You are hereby notified of the claim of Amy and Angela Gatchell for damages
Page 1382
against the City of South Bend and its Police Department for the wrongful death of James Gatchell for negligence and intentional wrong doing on the part of the City through its employee, Sam Young, Corporal, South Bend Police Department on or about the 23rd day of March, 1983.The address of Amy and Angela Gatchell is 3611 Rexford Drive, South Bend, Indiana 46613...."
While arguably deficient in other respects also, the notice completely failed to include the circumstances which brought about the loss, and the place the loss occurred.
The purpose of the notice statute is to inform a political subdivision, with reasonable certainty, of the accident and surrounding circumstances to allow investigation, determination of liability and preparation of a defense to the claim. Burggrabe v. Board of Public Works (1984), Ind.App., 469 N.E.2d...
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