South Bend Community Schools Corp. v. Widawski

• Decision Date: 21 October 1993
• Docket Number: No. 46S03-9310-CV-1142,46S03-9310-CV-1142
• Citation: 622 N.E.2d 160
• Court: Indiana Supreme Court
• Parties: 86 Ed. Law Rep. 950 SOUTH BEND COMMUNITY SCHOOLS CORPORATION and Bernie M. Niedbalski, Appellants (Defendants Below), v. Sandra WIDAWSKI, as next friend of Sara Page, Appellee (Plaintiff Below).

Page 160

622 N.E.2d 160

86 Ed. Law Rep. 950

SOUTH BEND COMMUNITY SCHOOLS CORPORATION and Bernie M.

Niedbalski, Appellants (Defendants Below), v. Sandra WIDAWSKI, as next friend of Sara Page, Appellee

(Plaintiff Below).

No. 46S03-9310-CV-1142.

Supreme Court of Indiana.

Oct. 21, 1993.

Philip E. Kalamaros, Edward N. Kalamaros & Assoc., South Bend, for appellant.

Steven J. Moerlein, Moerlein Law Office, South Bend, for appellee.

P. Gregory Cross, Cross, Marshall, Schuck, DeWeese, Cross & Feick, Muncie, for amicus curiae Indiana Trial Lawyers Ass'n DICKSON, Justice.

The issue presented in this case is whether a minor is an incapacitated person so as to toll the 180-day notice requirement of the Indiana Tort Claims Act, Ind.Code Sec. 34-4-16.5, et seq.

Sara Page, age 7, was injured on September 18, 1989, while participating in a South Bend Community School Corporation gym class taught by Bernie M. Niedbalski. On September 19, 1991, a notice of claim against a government entity, as required by Ind.Code Sec. 34-4-16.5-6, was provided with respect to injuries and losses sustained by Sara and her mother, Sandra Widawski. The following day, they filed a complaint against defendants-appellants South Bend Community School Corporation and Niedbalski. Because the statutory tort claim notice was not filed within 180 days after the loss occurred, the trial court granted summary judgment against the mother's claim but denied summary judgment as to the daughter's claim, finding minority to be an incapacity which relieved her of the notice deadline. Upon the defendants' appeal, the Court of Appeals reversed the denial of summary judgment. South Bend Community School Corp. v. Widawski (1992), Ind.App., 602 N.E.2d 1045.

The defendants contend that certain provisions included in Public Law 33-1989, effective May, 1989, significantly altered prior law under which minors were not required to file a tort claim notice until after the removal of their incompetency. They argue that under present law a minor plaintiff is now barred from bringing a cause of action whenever a notice of claim is not filed within the same period applicable to adults.

The plaintiff responds that the 1989 statutory changes reflect legislative intention to retain minority as a type of incapacity excepted from the 180-day notice requirement. They contend that a minor is inherently under a legal disability--a circumstance tantamount to incapacity. Plaintiff also urges that the phrase "other incapacity" in Ind.Code Sec. 29-3-1-7.5 is sufficiently broad to include minority status and afford Sara an extension of the 180-day filing requirement until 180 days after removal of her incapacity as a minor.

Pursuant to Ind.Code Sec. 34-4-16.5-7, any claim against a political subdivision is barred unless notice of that claim is properly filed with that entity within 180 days after the loss occurs. The statutory provisions pertinent to the present case are as follows:

If a person is incapacitated and cannot give notice as required in section 6 or 7 of this chapter, the person's claim is barred unless notice is filed within one hundred eighty (180) days after the incapacity is removed.

Ind.Code Sec. 34-4-16.5-8.

"Incapacitated" has the meaning set forth in [Ind.Code Sec.] 29-3-1-7.5.

Ind.Code Sec. 34-4-16.5-2(d).

"Incapacitated person" means an individual who:

(1) Cannot be located upon reasonable inquiry;

(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; or

(3) Has a developmental disability (as defined in [Ind.Code Sec.] 12-7-2-61).

Ind.Code Sec. 29-3-1-7.5.

Prior to the 1989 amendments, these provisions read as follows:

If a person is incompetent to give notice as required in section 6 or 7 of this chapter, his claim is barred unless notice is filed within one hundred eighty days after the incompetency is removed.

Ind.Code Ann. Sec. 34-4-16.5-8 (West 1983) (amended 1989).

"[I]ncompetent" means a person who is under the age of eighteen (18) years or is incapable by reason of insanity, mental illness, or other incapacity of either managing his property or caring for himself or both.

Law of May 4, 1987, Pub.L. No. 314-1987, sec. 1, 1987 Ind.Acts 3010 (amended 1989).

In essence, the 1989 modifications consist of replacing the term "incompetent" with "incapacitated," removing the definition of "incompetent" from the Tort Claims Act, and referring to the definition of "incapacitated" as defined in the new guardianship code at Ind.Code Sec. 29-3-1-7.5. Emphasizing certain rules of statutory construction, the defendants argue that minors are no longer incapacitated persons under Ind.Code Sec. 34-4-16.5-8. We do not agree.

The definition of "incapacitated person" includes individuals unable to manage their property or to provide for self-care because of mental or physical illness, substance abuse, confinement, duress, fraud, undue influence, "or other incapacity." Ind.Code Sec. 29-3-1-7.5. By this inclusion of "or other incapacity," the definition remains open to include the status of minority. Depending upon their age and maturity level, children are inherently limited in their capacity for self-sufficiency. Persons under eighteen years of age are additionally under a legal disability. Ind.Code Sec. 34-1-67-1(6),

-1(15). Because of such natural and legal incapacities, minor persons are clearly restrained in their ability to provide self-care or to fully manage...