Pitts v. District of Columbia

• Decision Date: 11 September 1978
• Docket Number: No. 12673.,12673.
• Citation: 391 A.2d 803
• Parties: Sharon Lee Johnson PITTS, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

391 A.2d 803

Sharon Lee Johnson PITTS, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 12673.

District of Columbia Court of Appeals.

Submitted June 1, 1978.

Decided September 11, 1978.

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Arthur S. Meisnere and Greg S. Friedman, Washington, D. C., were on the brief, for appellant.

John R. Risher, Jr., Corp. Counsel at the time the brief was filed, Richard W. Barton, Deputy Corp. Counsel, and Dennis McDaniel, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and KERN and FERREN, Associate Judges.

KERN, Associate Judge:

[1] Appellant brought suit against the District of Columbia on the ground that the District's negligent maintenance of a stairway in the public housing unit in which she lived resulted in the death of her three-year-old daughter. Allegedly, the child fell into the stairwell through an opening in the balustrade created by a missing baluster. On appeal, appellant contends that the trial court erroneously granted the District's motion for summary judgment on the ground she failed to comply with the notice provisions of D.C.Code 1973, § 12-309.¹

Section 12-309 provides:

An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the . . . [Mayor] of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular course of duty, is a sufficient notice under this section.

Appellant concedes that no letter of notification was sent within the statutory six month period to the Mayor of the District of Columbia giving ". . . the approximate time, place, cause and circumstances" of the incident. However, appellant maintains that the written reports concerning her child's death made by the police in the regular course of duty constituted sufficient notice to fall within the second sentence of Section 12-309.² Alternatively, appellant contends that her oral report of her child's injury to the security guard assigned to the building in which she lived constituted sufficient notice to the District of Columbia since the guard ". . . was acting as an authorized agent of the defendant . . . [and that] notice to [an] . . . agent is notice to the principal." [Appellant's brief at 3.] Since this contention which relies on oral notice is contrary to both the statute and the case law of this jurisdiction,³ we will consider only appellant's contention that the police reports were sufficient notice under Section 12-309.

Section 12-309 requires potential claimants to provide an early warning to District of Columbia officials regarding litigation likely to occur in the future. Thus, this Section gives the District a litigative advantage over an ordinary civil defendant who may learn of claims against him for unliquidated damages at any time within the longer statute of limitations period. See D.C. Code 1973, § 12-301.

The rationale underlying the Section 309 notice requirement is to (1) protect the District of Columbia against unreasonable claims and (2) to give reasonable notice to the District of Columbia so that the facts may be ascertained and, if possible, deserving claims adjusted and meritless claims resisted. Jenkins v. District of Columbia, D.C.App., 379 A.2d 1177, 1178 (1977); Hill v. District of Columbia, D.C.App., 345 A.2d 867, 869 (1975); Wilson v. District of Columbia, D.C.App., 338 A.2d 437, 438 (1975); and Miller v. Spencer, D.C.App., 330 A.2d 250, 251 (1973). The legislative history of Section 309 also indicates the provision was intended to encourage the prompt settlement of meritorious claims and to permit the District to conduct an early investigation of the facts and circumstances surrounding such claims. As described in the committee report accompanying the statute, the section was designed to aid the District of Columbia "in the defense of the public interest where claims" are filed within the applicable "statute of limitations but so long after the event that it is impossible" for the city "to obtain evidence for use in litigation which may result." Pickney v. District of Columbia, 439 F.Supp. 519, 525 n. 6 (D.D.C.1977), quoting H.R.Rep. No. 2010, 72d Cong., 2d Sess. 1 (1933). See District of Columbia v. Leys, 62 U.S.App. D.C. 3, 63 F.2d 646 (1932).⁴

Since Section 12-309 is in derogation of the common law, it is to be strictly construed. Toomey v. District of Columbia, D.C.App., 315 A.2d 565, 566 n. 1 (1974); District of Columbia v. World Fire & Marine Ins. Co., D.C.Mun.App., 68 A.2d 222, 225 (1949). See Boone v. District of Columbia, 294 F.Supp. 1156, 1157 (D.D.C.1968) (written notice is insufficient due to its failure to state the claimant's identity or the circumstances of the injury). Cf. Dellums v. Powell, 184 U.S.App.D.C. 324, 327, 566 F.2d 216, 219 (1977). Moreover, compliance with the statutory notice requirement is mandatory. Hill v. District of Columbia, D.C.App., 345 A.2d 867, 869 (1975).

However, as this court has noted "with respect to the details of the statement [giving notice], precise exactness is not absolutely essential." Hurd v. District of Columbia, D.C.App., 106 A.2d 702, 705 (1954) (written notice should describe the situs of the injury in such a manner as to enable the investigating agency to find it) (emphasis added); District of Columbia v. Green, 96 U.S.App.D.C. 20, 21, 223 F.2d 312, 313 (1955). Compare Dixon v. District of Columbia, D.C.App., 168 A.2d 905, 907 (1961) (written notice is adequate although it alleged the injury was due to a defective sidewalk rather than a defective gutter) with Miller v. Spencer, D.C.App., 330 A.2d 250, 251 (1974) (mention of property damage in a police report is not notice to the District of personal injuries sustained in the same incident). See Hirshfield v. District of Columbia, 103 U.S.App.D.C. 71, 73, 254 F.2d 774, 776 (1958).

In order for a police report made in the regular course of duty to satisfy the Section 309 requirement of notice, it must contain information as to the approximate time, place, cause and circumstances of the injury or damage ". . . with at least the same degree of specificity required of a written notice." Jenkins v. District of Columbia, supra at 1178; Miller v. Spencer, supra at 252; Brown v. District of Columbia, D.C.App., 304 A.2d 292, 293 (1973); Stone v. District of Columbia, 99 U.S.App. D.C. 32, 34, 237 F.2d 28, 30, cert. denied, 352 U.S. 934, 77 S.Ct. 221, 1 L.Ed.2d 160 (1956).

In Miller v. Spencer, supra at 252, the legislative history of the statute is cited to the effect that:

[t]he police report is an alternative form of notice added to "[take] care of those instances in which actual notice is had by the District of Columbia from the police department, although technical notice may not have been filed by the person injured." . . . [the report must contain the same degree of specificity required of the written notice] to require any less would place an intolerable investigative burden on the District. [Emphasis in original.]

Moreover, as Miller v. Spencer, supra at 251, recognized, "[the argument that] the mere existence of any police report . . without regard to its scope or accuracy, satisfied the plain language of the statute so long as it is made in the regular course of duty . . . is contrary to the general purpose of the provision as a whole." It has also been held that a police arrest report is not notice to the District of a possible false arrest. Jenkins v. District of Columbia, supra at 1178; Brown v. District of Columbia, supra at 293, and that a police report of an accident involving property damage is not notice to the District of any personal injuries which may have occurred. Miller v. Spencer, supra at 252. However, a "full detailed official report" made after an accident which reflected an immediate and thorough investigation has been found to satisfy the statutory notice requirement. Thomas v. Potomac Electric Power Co., 266 F.Supp. 687, 694 (D.D.C.1967). Moreover, the United States Circuit Court for the District of Columbia has recently considered whether particular police reports complied with the Section 12-309 requirement of notice in a case involving the negligent supervision of a parolee by an employee of the District of Columbia. In Rieser v. District of Columbia, 183 U.S.App.D.C. 375, 380, 563 F.2d 462, 467 (1977), the police reports had provided the District with notice of the time and place of the injury, as in the instant case. In Rieser, the District argued that the police reports did not describe the "circumstances" giving rise to its liability; viz., its failure to fully disclose a parolee's criminal background and its failure to provide adequate parole supervision. Id. 183 U.S.App.D.C. at 389, 563 F.2d at 476. The federal circuit court here rejected these contentions and held:

that the police reports [of a murder by the parolee] provided the District notice of the principal facts sufficient to lead it to those related facts which were peculiarly within its possession and that the requirements of Section 12-309 were satisfied. [Id.]

Our review of the precedents considering whether a particular police report has satisfied the notice requirement of Section 309 persuades us that those decisions implicitly follow a case-by-case approach in an area where no "bright line" tests are applicable. Likewise, we conclude that the determination of whether a particular police report or series of reports constitutes statutory notice to the District of Columbia can only be reached after consideration of the particular facts of the case, the nature of the report itself and the objectives sought to be attained by the notice provision.

While the Section 12-309 proviso states that a written police report made in the...