Polick v. Indiana Dept. of Highways
| Citation | 668 N.E.2d 682 |
| Decision Date | 07 August 1996 |
| Docket Number | No. 46S03-9510-CV-1214,46S03-9510-CV-1214 |
| Parties | Gwen POLICK, Appellant (Plaintiff below), v. INDIANA DEPARTMENT OF HIGHWAYS, an Administrative Agency of the State of Indiana; the State of Indiana; and the Indiana Toll Road Commission, Appellees (Defendants below). |
| Court | Indiana Supreme Court |
Terrance L. Smith, Krista Smith MacLennan, Smith & DeBonis, East Chicago, for Appellant.
David C. Jensen, Jeffrey L. Freeman, Eichhorn, Eichhorn & Link, Hammond, for Appellees.
Jeffrey A. Cooke, Indiana Trial Lawyers Association, Lafayette, Amicus Curiae.
On Petition To Transfer
The issue in this case is whether the trial court erred in dismissing the complaint of a severely injured plaintiff whose notice of claim pursuant to the Indiana Tort Claims Act ("the Act") was filed 181 days after the accident, contrary to the 180-day limit prescribed by the Act. See Ind.Code § 34-4-16.5-7. The Court of Appeals affirmed the dismissal. Polick v. Indiana Dep't of Highways, 650 N.E.2d 331 (Ind.Ct.App.1995). We granted transfer on October 19, 1995.
On June 30, 1991, Gwen Polick sustained massive injuries, rendering her a quadriplegic, when the automobile in which she was riding as a passenger was involved in a single-car accident. She suffered a trauma to the cervical spine. She was immediately hospitalized with a broken neck, difficulty breathing, and an absence of sensation below the shoulders. When admitted, she was found to be alert, to be oriented as to time and place, and to have no diminished higher brain function. She was placed in traction devices that prevented movement of her head and neck and was ventilated by a tube running down her throat. During her first two days in the hospital, she was classified as a "total-care patient" and was unable to speak or to push a button to summon a nurse. However, she was able to understand what was going on around her and was in full possession of her cognitive functions. She was confined to an intensive care unit until July 3, 1991, when she underwent fusion surgery to stabilize her spine. During the period of her intubation, which lasted until the afternoon of July 2, 1991, the plaintiff could communicate only by nodding her head or blinking her eyes. During the balance of her hospitalization, she was able to use her voice to communicate. At all times, the plaintiff appeared to be conscious, alert, able to understand fully what was going on around her, and able to make independent decisions concerning her welfare and personal matters.
Less than nine months after the accident, the plaintiff filed a complaint against the State, alleging negligence in the design and maintenance of the roadway and bridge upon which the collision occurred.
The Indiana Tort Claims Act provides that a claim against a political subdivision is barred unless a prescribed notice is filed within 180 days after the loss occurs. Ind.Code § 34-4-16.5-7. This requirement is subject to the following exception: "If a person is incapacitated and cannot give notice as required ... the person's claim is barred unless notice is filed within one hundred eighty (180) days after the incapacity is removed." Ind.Code § 34-4-16.5-8. The Tort Claims Act, Indiana Code Section 34-4-16.5-2(d), designates the definition of "incapacitated" to be that given in Indiana Code section 29-3-1-7.5, which provides in relevant part:
"Incapacitated person" means an individual who: ...
(2) Is unable:
(A) To manage in whole or in part the individual's property;
(B) To provide self-care; or
(C) Both;
because of insanity, mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, undue influence of others on the individual, or other incapacity ...
The evidence and the trial court findings clearly establish that, at least for a period of three days, the plaintiff satisfied the plain and literal meaning of this definition of "incapacitated" because she was "unable ... to provide self-care ... because of ... physical illness [or] infirmity." Ind.Code § 29-3-1-7.5 . Among its findings of fact, the trial court expressly found:
From June 30, 1991 through July 3, 1991, Ms. Polick remained confined to the intensive care unit at St. Anthony's Hospital, required total care and was unable to move any part of her body below her shoulders. Plaintiff was physically unable to provide any type of self-care ... because of the above-described physical condition.
The defendants emphasize that the plaintiff was mentally capable, at all times, of managing her own affairs. However, the statutory exception tolling the notice filing deadline, Indiana Code section 34-4-16.5-8, is based not upon incompetence but rather upon incapacity, which under its statutory definition exists--regardless of the person's mental competence--when a person is unable to provide self-care because of physical illness or infirmity. See Ind.Code §§ 29-3-1-7.5, 34-4-16.5-8.
Notwithstanding the statutory definition of incapacity, the defendants argue that the physical ability to provide self-care should not be the sole criterion for tolling the notice provision. They urge judicial construction of the tolling statute, Indiana Code section 34-4-16.5-8, to require that the incapacity be causally linked to an inability to give notice. They argue that in City of Fort Wayne v. Cameron, 267 Ind. 329, 370 N.E.2d 338 (1977), this Court interpreted the notice requirement of a predecessor statute to the Act to require a plaintiff to show that non-compliance was the product of the incapacity. We do not find this to be the holding of Cameron.
In Cameron, which arose and was decided before the enactment of the Tort Claims Act, the plaintiff was found to have acquired a common-law right of action against the city for negligence but faced a statutory procedural requirement to file a notice of claim within sixty days following the injury. Id. at 334, 370 N.E.2d at 341. Noting the absence of any statutory provision for tolling this sixty-day deadline, this Court unanimously found the Indiana constitutional right to remedy by due course of law 1 to entitle a plaintiff who is "mentally and physically incapacitated so that he could not give" the required notice to "a reasonable time after his disability [is] removed within which to file the notice to the city." Cameron, 267 Ind. at 334, 370 N.E.2d at 341. The opinion in Cameron, however, merely determines a minimum requirement under state constitutional law. It does not limit the legislature from allowing incapacitated persons a greater length of time within which to comply with the statutory notice requirement. Cameron is therefore not instructive for purposes of the statutory construction of the notice tolling provision in the present Tort Claims Act.
To support their argument that physical incapacity alone does not cause an inability to give notice and is thus insufficient to toll the statute, the defendants also cite State v. Hughes, 575 N.E.2d 676 (Ind.Ct.App.1991); Lett v. State, 519 N.E.2d 749 (Ind.Ct.App.1988); and Dunn v. City of Indianapolis, 451 N.E.2d 1122 (Ind.Ct.App.1983). Each of these cases involved the application of the Tort Claims Act notice deadline tolling provision that was the predecessor to the provision at issue in the present case. Under this prior statute, if a person was "incompetent," the 180-day notice period did not begin until the incompetency was removed. Ind.Code § 34-4-16.5-8 (West 1986). An incompetent person was defined as one "who is under the age of eighteen years or is incapable by reason of insanity, mental illness, or other incapacity of either managing his property or caring for himself or both." Ind.Code § 34-4-16.5-2(3) (West 1986). We find none of these cases to be applicable, because in each, the evidence or the trial court's findings indicated that the date of the filing...
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...claimant because the Act is in derogation of the right at common law to sue the government in tort. See, e.g., Polick v. Indiana Dep't of Highways, 668 N.E.2d 682, 685 (Ind.1996). Moreover, because there is no bar in the Tort Claims Act to a class action, the same considerations that led to......
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