Roehrig v. City of Louisville
| Decision Date | 22 May 1970 |
| Citation | 454 S.W.2d 703 |
| Parties | Jane Ann ROEHRIG, Executrix of the Estate of Urban J. Steinbock, Appellant, v. CITY OF LOUISVILLE, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
William Mellor, Louisville, for appellant.
Eugene H. Alvey, Director of Law, Louisville, Wm. A. Stephenson, Asst. Director of Law of City of Louisville, Louisville, for appellee.
CULLEN, Commissioner.
On October 25, 1967, an automobile being operated by Urban J. Steinbock hit a tree which stood at or near the edge of a road in a city park in Louisville. Steinbock died about one month later. On October 1, 1968, his widow, who was a passenger in the automobile at the time of the accident, brought suit against Jane Ann Roehrig, executrix of his will, seeking damages for personal injuries claimed to have been sustained by Mrs. Steinbock in the accident. The executrix filed a third-party complaint against the City of Louisville, seeking contribution on any recovery against the executrix, on the theory that the city negligently had maintained the tree on or near the road. The city moved to dismiss the third-party complaint on the ground that any liability on its part was barred by reason of the fact that notice of claim of injury had not been given to the city within 90 days of the accident, as required by KRS 411.110. The circuit court sustained the motion and entered a judgment dismissing the third-party complaint, the judgment being made final and appealable by compliance with CR 54.02. The executrix has appealed.
The only question on the appeal is whether the giving (by someone) of the notice provided for in KRS 411.110 is a condition precedent to the marking of a claim for contribution against a city on a liability for damages for injuries growing out of a defect in a public street, etc.
As concerns the application of statutes of limitation, the law is well settled that limitations against a claim for conribution on a tort liability start running not from the time of the commission of the tort, but from the time the right of action for contribution accrues (ordinarily by payment). See Annotation, 20 A.L.R.2d 925; and Consolidated Coach Corporation v. Burge, 245 Ky. 631, 54 S.W.2d 16. The reason for the rule is that otherwise the injured party could foreclose a tortfeasor's right to contribution by waiting to bring his action until just before the statute of limitations ran on his claim. The tortfeasor would be helpless to save his right of contribution. (It is true, as we held in Parker v. Redden, Ky., 421 S.W.2d 586, that a declaration or adjudication of liability for contribution can be made before the right to recover contribution has fully matured through payment, but obviously a proceeding for an adjudication of the right to contribution could not be brought before the injured party himself had asserted any claim.)
While the notice statute here in question is not a statute of limitations, see Galloway v. City of Winchester, 299 Ky. 87, 184 S.W.2d 890, we think the controlling consideration should be the same; that is, the extent to which the tortfeasor has any control over whether the statute is complied with. If he has no effective control, in that he cannot by his own act give the required notice, and cannot compel the injured party to give notice, then the fact that the statutory notice was not given should not bar the claim for contribution.
The statute, KRS 411.110, is as follows:
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