Shearer v. Perry Community School Dist.

• Decision Date: 17 December 1975
• Docket Number: No. 2--56764,2--56764
• Parties: Kenneth L. SHEARER, Jr., a minor by Kenneth L. Shearer, his natural father and next friend, and Kenneth L. Shearer, Appellants, v. PERRY COMMUNITY SCHOOL DISTRICT, Defendant-Appellee, Nichols Wrestling Products, Inc., and Universal Athletic Sales Co., Defendants.
• Court: Iowa Supreme Court

Page 688

236 N.W.2d 688

Kenneth L. SHEARER, Jr., a minor by Kenneth L. Shearer, his natural father and next friend, and Kenneth L. Shearer, Appellants, v. PERRY COMMUNITY SCHOOL DISTRICT, Defendant-Appellee, Nichols Wrestling Products, Inc., and Universal Athletic Sales Co., Defendants.

No. 2--56764.

Supreme Court of Iowa.

Dec. 17, 1975.

George P. Soumas, and Spellman, Spellman & Spellman, Perry, for appellants.

L. W. Rosebrook, of Ahlers, Cooney, Dorweiler & Haynie, Des Moines, for appellee Perry Community School District.

Considered en banc.

REES, Justice.

Plaintiffs appeal from the order of the trial court sustaining motion of defendant Perry Community School District for summary judgment and dismissing plaintiffs' petition as against the school district. We affirm.

On March 25, 1971, Kenneth L. Shearer, Jr., then age 14 and a student at Perry Community High School, was engaged in an exercise known as 'curling' which involved lifting a weight attached to a bar with a cable, on a device described as a Universal Gladiator '70', the property of the school district. While the Shearer youth was involved in such exercise, a portion of the machine became disengaged from the rest of the device and struck him in the mouth and teeth, resulting in the loss of his two front teeth and necessitating considerable dental treatment.

At the time of the injury, the physical education instructor was in the room with young Shearer, and the injury was immediately reported to the assistant principal and the principal of the defendant school district. The following day Shearer's mother reported the injury to the superintendent of the school district.

On March 23, 1973, Kenneth Shearer, Jr., by and through his father and next friend, Kenneth L. Shearer, filed a petition against the school district and the distributor and manufacturer of the exercise machine for damages in the amount of $25,000 arising out of the injury. Kenneth L. Shearer, Sr., also prayed for damages against the school district in the amount of $5000 for loss of his son's services and other damages arising out of the injury. The petition of the plaintiffs was based upon theories of negligence, breach of implied warranty and the doctrine of strict liability. The manufacturer and distributor of the machine both answered and are not parties to this appeal.

Defendant school district filed answer denying liability and later filed its motion for summary judgment alleging neither plaintiff had complied with the notice requirements of § 613A.5, The Code, 1971, as amended. In their resistance to the motion for summary judgment, plaintiffs asserted the school district, through its agents and employees, had actual notice of the injury, that the time for bringing the action was extended by § 614.8, The Code, 1971, and further asserted that § 613A.5, The Code, is unconstitutional.

In sustaining defendant's motion for summary judgment and dismissing plaintiffs' petition as against the school district, trial court held actual notice by the teacher and other agents of the school district and verbal notice to the superintendent did not constitute compliance with § 613A.5; that § 614.8 had no application to the right of action and the limitation of actions created by chapter 613A; and further that § 613A.5 was not unconstitutional. This appeal followed the entry of such order.

Plaintiffs present the following issues for review which they contend necessitate a reversal of the order of the trial court:

1. Section 613A.5, The Code, 1971, violates the guarantees of due process of law of the Constitution of the United States and the Constitution of the State of Iowa.

2. Section 613A.5, The Code, 1971, violates the Equal Protection Clause of the Constitution of the United States.

3. The actual knowledge of the injury to plaintiff on the part of teachers or other agents of the school district and the verbal notice of the injury to the superintendent of the school district constituted substantial compliance with the notice requirements of § 613A.5, The Code, 1971.

4. Section 614.8, The Code, 1971, extended in the case of the minor plaintiff the time for making a claim for personal injuries against the school district to a period ending one year after the termination of his minority.

I. In their first issue presented for review, plaintiffs assert § 613A.5, The Code, 1971, is repugnant to the guarantees of due process of law set forth in Amendment 14 of the United States Constitution, and in the Constitution of the State of Iowa.

Chapter 613A, The Code, 1971, provided for the tort liability of governmental subdivisions and for methods of enforcing a right of action arising thereunder. Section 613A.5 provided periods of limitation for claimants asserting a right to recover under the chapter. Said section is as follows:

'613A.5 Limitation of actions. Every person who claims damages from any municipality for or on account of any wrongful death, loss or injury within the scope of section 613A.2 shall commence an action therefor within three months, unless said person shall cause to be presented to the governing body of the municipality within sixty days after the alleged wrongful death, loss or injury, a written notice stating the time, place, and circumstances thereof and the amount of compensation or other relief demanded. Failure to state the amount of compensation or other relief demanded shall not invalidate the notice; providing, the claimant shall furnish full information regarding the nature and extent of the injuries and damages within fifteen days after demand by the municipality. No action therefor shall be maintained unless such notice has been given and unless the action is commenced within two years after such notice. The time for giving such notice shall include a reasonable length of time, not to exceed ninety days, during which the person injured is incapacitated by his injury from giving such notice.'

Plaintiffs argue the above statute is constitutionally offensive on its face and as applied to them in that it arbitrarily and capriciously infringes upon a vested property right and places the burden on an injured minor to protect such right regardless of his age or the nature and extent of his injury.

Plaintiffs are laboring under a heavy burden. With exceptions not here involved, statutes regularly enacted by legislatures are afforded a strong presumption of constitutionality and all reasonable intendments are indulged in favor of the validity of the legislation attacked. Presbytery of Southeast Iowa v. Harris, 226 N.W.2d 232, 237 (Iowa 1975); Keasling v. Thompson, 217 N.W.2d 687, 689 (Iowa 1974) and citations. Where the constitutionality of a statute is doubtful or fairly debatable, we will not set it aside. Keasling v. Thompson, supra.

Plaintiffs invoke the due process clauses of both our state's constitution and Amendment 14 to the United States Constitution. The provisions of both are similarly phrased. Where constitutional provisions contain similar guarantees, they are usually deemed to be identical in scope, import, and purpose. Davenport Water Co. v. Iowa State Commerce Commission, 190 N.W.2d 583, 593 (Iowa 1971).

We consider first plaintiffs' claim § 613A.5 is constitutionally offensive on its face. Important in our consideration is the fact chapter 613A created a right of action unknown at our common law. In Sprung v. Rasmussen, 180 N.W.2d 430, 433 (Iowa 1970), we said of this chapter, and particularly of § 613A.5:

'The statute creates a new liability and provides for methods of enforcing the same, and by its terms fixes the time within which action for recovery may be commenced. It being a statute of creation, the commencement of the action within the time the statute fixes is an indispensible condition of the liability and of the action permitted. The time element is an inherent element of the right so created, and the limitation of the remedy is likewise a limitation of the right.' (emphasis supplied)

At the same page of Sprung, supra, we noted that under these statutes of creation, sometimes referred to as 'conditions precedent to suit' statutes, non-compliance affects the right of action as well as the remedy. We also commented upon the basis for disparate treatment of victims of governmental and private torts, saying:

'Where, as here, the legislature has created a new right of action, it made a legislative judgment that the cause should be brought within a specified time. This difference doubtlessly arises from the fact the statute we are here interpreting is in derogation of sovereign immunity and that the legislature might, and did, properly restrict and limit the application of the statute.'

In the light of our interpretation of § 613A.5 we are unable to agree with plaintiffs that said section arbitrarily and capriciously infringes upon or cuts off vested rights in violation of constitutional guarantees. Instead, we conclude the right of action provided by chapter 613A is co-extensive with, and no broader than, the notice requirement of § 613A.5. In other words, it might be said compliance with the notice requirement is a condition precedent to the maintenance of an action for compensation for torts committed by governmental subdivisions. See 1 Am.Jur.2d Actions § 81, p. 610.

We might find some difficulty in upholding § 613A.5 against a constitutional challenge if it were shown the condition attached to the right of action was so unreasonable as to render compliance almost impossible or to give an injured person, in essence, no right of recovery. Yet we are mindful of the general rule stated in 16 C.J.S. Constitutional Law § 266a, p. 1260:

'Where the time within which a right of action may be enforced is limited by the legislative enactment which creates the right, the legislature is the exclusive judge of the reasonableness of the limitation and it is not the province of the courts to inquire concerning it.'

Courts have...