Oakley v. State , 54 Haw. 210 ( 1973 )

OPINION OF THE COURT BY

KOBAYASHI, J.

George Oakley, by and through his Guardian, Patricia Oakley (hereinafter called appellant), filed a complaint against Edward Harada, Chief Engineer, County of Hawaii (hereinafter called cross-appellant), County of Hawaii (hereinafter called appellee), and others, alleging that cross-appellant, appellee, et al., negligently designed, maintained and inspected the county roadways, resulting in serious injuries to appellant, and sought damages therefor.

The appellee and cross-appellant in their answers to the complaint raised, inter alia, the following defense: that appellant’s notice of claim required under HRS § 46-72 and County of Hawaii Charter Sec. 13-18 is insufficient and defective, and moved for a summary judgment.

The appellee and cross-appellant relied strictly on the opinion expressed by this court in Rogers v. City and County, 32 Haw. 722 (1933).

The trial court in granting appellee’s motion for summary judgment stated orally prior to the issuance of a written judgment that the court would not abide strictly by the holding in Rogers but would determine whether appellant had sufficiently complied with the requirements of HRS § 46-72. The court concluded that actually there was non-compliance on the part of appellant relative to the requirements of said § 46-72.

The trial court denied the motion for summary judgment requested by cross-appellant.

Appellant requested and was granted the opportunity to file an interlocutory appeal from the order granting dismissal of complaint and summary judgment to appellee.

Cross-appellant was also permitted to appeal from the trial court’s denial of cross-appellant’s motion for summary judgment.

FACTS

Prior to the commencement of this action, on or about May 9, 1969, appellant presented to appellee a notice of claim for damages, stating, to-wit:

Pursuant to Section 46-72 of the Hawaii Revised Statutes, notice is hereby given within the six-month period of the personal injury suffered on November 11, 1968 by George Oakley, M.D., on the streets and highways of the County of Hawaii, and by his wife and by his five children. Dr. Oakley was lawfully and carefully operating his motor vehicle upon the County highway; due to the negligent failure of the County to properly construct or have constructed the road and shoulders thereof, and in accepting said highway as complete, and the negligent failure of the County to maintain a safe highway, Dr. Oakley’s car went out of control and flipped over a number of times.

The injuries suffered by the doctor as a result of his accident in addition to the pain and suffering, including a severe injury to the brain which will effectively keep him from practicing as a doctor in the future, may well preclude him from practicing any other profession, skill, occupation or calling of a gainful sort. In addition, his coordination has been seriously affected and he has suffered injuries to his skull, spine and shoulders and other areas presently unascertainable. The injuries to Dr. Oakley include the estimated cost of his medical care which is presently believed to be $300,000.00 but which may be more; loss of income which we believe will be in excess of $1,200,000.00; pain, mental suffering and anguish and other damages in the amount of $250,000.00.

In addition, the Oakley children have been deprived of a father and their damages collectively are believed to be in the amount of $200,000.00. Lastly, Mrs. Oakley has been substantially deprived of a husband and whose injuries are believed to be $250,000.00. We hereby make claim upon the County of these amounts.

The claim of appellant was denied by appellee and thereafter appellant instituted this proceeding.

STATUTORY PROVISIONS

In Rogers, § 1833, R.L.H. 1925, was in issue. Said 1833 provided as follows:

Sec. 1833. Notice of injuries. Before the city and county shall be liable for damages to any person for injuries to person or property received upon any of the streets, avenues, alleys, side-walks or other public places of the city and county, or on account of any negligence of any official or employee of such city and county, the person so injured, or the owner or person entitled to the possession, occupation or use of the property so injured, or someone in his behalf, shall, within six months after receiving such injuries, give the mayor notice in writing of such injuries, and the specific damages resulting, stating fully in such notice, when, where and how the injuries occurred, the extent thereof and the amount claimed therefor.

HRS § 46-72 provides as follows:

§46-72 Liability for damages; notice of injuries. Before the county shall be liable for damages to any person for injuries to person or property received upon any of the streets, avenues, alleys, sidewalks, or other public places of the county, or on account of any negligence of any official or employee of the county, the person so injured, or the owner or person entitled to the possession, occupation, or use of the property so injured, or someone in his behalf, shall, within six months after the injuries are received, give the chairman of the board of supervisors or the city clerk of Honolulu notice in writing of the injuries and the specific damages resulting, stating fully in the notice when, where, and how the injuries occurred, the extent thereof, and the amount claimed therefor.

Section 13-18 of the Hawaii County Charter states, to-wit:

Section 13-18. Claims. No action shall be maintained for the recovery of damages for any injury to persons or property by reason of negligence or other act of any official or employee of the county unless a written statement stating fully when, where and how the injuries occurred, the apparent extent thereof and the tentative amount claimed therefor shall have been filed with the county clerk within six months after the date the injury was sustained.

The provisions of § 1833, R.L.H. 1925, and HRS § 46-72 do not differ in any important detail. Both-sections are general provisions relating to counties and both have similar provisions stating that before a county (as in HRS § 46-72) or city and county (as in § 1833, R.L.H. 1925) shall be liable for damages a notice in writing must be filed with the chairman of the board of supervisors or the city clerk of Honolulu (as in HRS § 46-72) or filed with the mayor (as in § 1833, R.L.H. 1925).

The provisions of § 13-18 of the Hawaii County Charter do not differ in any important substantive degree from the provisions of HRS § 46-72. Said § 13-18 provides, however, that “no action shall be maintained for the recovery of” rather than “before the county shall be liable” as in HRS § 46-72.

By Act 235, S.L.H. 1967, the state legislature empowered the various counties to formulate, publish and submit to the electors for approval a proposal for a county charter. The legislature in said Act 235 specifically provided as follows: “Upon adoption, the charter shall become the organic law of the county and shall supersede any existing charter and all laws affecting the organization and government of the county which are in conflict therewith.”

The Charter of the County of Hawaii became effective January 2, 1969.

Thus, whatever opinions expressed by this court in this opinion are applicable to the provisions of both HRS § 46-72 and § 13-18 of the Hawaii County Charter.

ISSUE

The basic issue to be resolved herein is whether HRS § 46-72 is to be strictly and technically construed as in Rogers.

In Rogers this court, in construing § 1833, R.L.H. 1925, held at pages 724 to 727:

It will be observed that one of the requirements of this section is that in the written notice to be given to the mayor the claimant shall state “fully” where the injuries occurred, that is, that the claimant shall describe “fully” the place of the accident. It is not even a substantial compliance with this requirement to merely say, as is said in the plaintiff’s letter of February 6, 1931, that the accident occurred “on North King Street.” North King Street, it is well known in this community, is over two miles in length. . . . Assuming, that which is not entirely clear, that the letter of the county attorney . . . could be held to constitute a waiver of any other or further description of the place of the accident, we are of the opinion that in such a case as this there can be no waiver. ... In none of them {statutes in other jurisdictions] have we found a statement in the precise language of our statute that the notice must be filed “before the city and county shall be liable.” . . .

The fact that the municipal officials otherwise acquired actual knowledge of the place of the accident is immaterial. . . .

OPINION

Though we are in agreement with the holding implicit in Rogers that the statutory requirement of filing a written notice of claim within the time specified cannot be waived,¹ we cannot accept and we therefore overrule the remaining portion of the opinion.

We believe that in order to do justice and resolve controversies on their merits, a liberal construction of the statute is necessary and appropriate and, specifically in this case, the statutory requirement of “stating fully in such notice, when, where and how the injuries occurred.”

We believe that the basic purpose of the statutory requirement of filing a written notice of claim in the time specified, “before the county shall be liable for damages to any person” (as in HRS § 46-72) or that “no action shall be maintained for the recovery of damages for injury to any person” (as in § 13-18 of the Hawaii County Charter) is to inform the municipal authorities “when, where and how the injuries occurred, the extent thereof and the amount claimed therefor” to guard the municipality against fraudulent and unfounded claims and so that an investigation, while the facts are fresh and conditions remain substantially the same, can be made by the municipal officials as to the time, place and the conditions of the premises in order to make a decision as to whether the case may be settled or tried. In our opinion the question then is whether, under all the circumstances of the case, the municipal officials have been misled to their prejudice by claimant’s general or unspecific or even inaccurate written notice of claim.² Thus, as in the instant case, the burden then shifts to the appellant to show that the appellee was not misled to its prejudice by appellant’s written notice of claim.³

We are mindful that the written notice of claim at issue, if it is to be judged without all the circumstances of the case, is patently insufficient. Obviously also, if the appellant herein had failed to file any written notice of claim, the actual knowledge of the municipal officials of “when, where and how the injuries occurred” is immaterial. But, however, a defect as to form in the notice of claim can be waived by the municipal officials. Moncheck v. City of Miami Beach, 110 So.2d 20, 22 (Fla. 1959).

It is our opinion that whenever, under the statute in question, a person files a written notice of claim, as contrasted with an absolute failure to file any written notice of claim, the issue is not a question of non-compliance but a question of sufficiency of compliance under all the circumstances of the case. The test to determine sufficiency of compliance then is whether the municipal officials have been misled to their prejudice, under all the circumstances of the case, by the written notice of claim filed. If they have not been misled and prejudiced then the written notice of claim complies sufficiently with the requirements of the statute.

In determining whether the appellee has been misled to its prejudice, the fact that the various county officials had investigated and/or had knowledge of “when, where and how the injuries occurred” all have relevancy in appellant’s onus to show that the appellee was not misled to its prejudice by appellant’s written notice of claim. And depending on the circumstances of a particular case other facts can very well be also relevant. We appreciate the fact that no other jurisdiction may have construed a notice of claim statute as expressed herein. However, the following cases are helpful in reaching the conclusion we have expressed herein:

In Sayre v. El Dorado County High School District, 97 Cal. App. 2d 333, 334, 217 P.2d 713, 714 (1950), the written notice of claim stated: plaintiff “was driving and operating the said school bus upon U.S. Highway No. 50 within the County of El Dorado.” The trial court dismissed the complaint stating that the notice had no definite allegation describing the place of accident. The court of appeals reversed and held:

The present tendency of the courts is to give a liberal construction to claims statutes, and to hold that where a claimant has made a reasonable attempt to comply with the law in good faith, and no intent to mislead or conceal appears, the claim will be held sufficient in the absence of anything indicating-that the defendant has been misled.

In Mace v. City of Pasadena, 199 Cal. App. 2d 522, 524, 18 Cal. Rptr. 692 (1962), the claim filed gave the wrong name of one of the streets of an intersection wherein the accident occurred.

The court of appeals, after stating that where, among other things, the location was photographed by police shortly after the accident and the city temporarily repaired the hole the day after the accident, concluded that the claim was legally sufficient and reversed the trial court.

The court of appeals further stated at page 524:

Our only purpose in stating the foregoing facts is that they have direct bearing upon the sufficiency of the claim. While mere knowledge of the city of the existence and location of the hole in the street could not supply a material deficiency in the claim as to those facts, yet such knowledge was important in ascertaining from the claim itself whether plaintiff was endeavoring in good faith to describe the location, and whether the error was due to a mistake of her attorney in stating the location of the accident with respect to the name of an intersecting street.

Robert B. Ingram (Belli, Ashe, Ellison, Choulos and Lieff of counsel; C. Duane Carlsmith and Vasillos B. Choulos on the briefs) for plaintiff-appellant, crossappellee. George S. Yuda, special counsel (Clifford H. F. Lum, acting corporation counsel, of counsel), for defendantsappellees and defendant, cross-appellant.

See also Hartley v. Tacoma School District No. 10, 56 Wash.2d 600, 554 P.2d 897 (1960); Weaver v. Village of Bancroft, 92 Id. 189, 439 P.2d 697, 700 (1968).

CONCLUSION

On the record of the case a genuine issue of a material fact remains outstanding and consequently we reverse the trial court in granting the motion for summary judgment to the appellee. HRCP Rule 56.

Cross-appellant’s claim of error herein is without merit. The record of the case shows clearly that a genuine issue of a material fact remains unresolved.

Reversed and remanded for trial in accordance with this opinion.

1 However, see Tillman v. City of Pompano Beach, 100 So.2d 53 (Fla. 1957), re applicability of doctrine of estoppel; Monchek v. City of Miami Beach, 110 So.2d 20, 22 (Fla. 1959), as to waiver of defect as to form. See also Galbreath v. City of Indianapolis, 253 Ind. 472, 476-80, 255 N.E.2d 225, 228-29 (1970).

2 Even in a jurisdiction construing the notice statute strictly, the question o£ prejudice is considered a valid issue. See Powell v. Town of Gates, 36 A.D.2d 220, 319 N.Y.S.2d 650 (1971).

3 See Tobin v. Inhabitants of Brimfield, 182 Mass. 117, 65 N.E. 28 (1902).