Susan F. McCall v. City of Washington (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Jan 28 2016, 8:33 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Matthew J. McGovern Liberty L. Roberts
Anderson, Indiana Church Church Hittle & Antrim
Fishers, Indiana
Daniel J. Tuley
Tuley Law Office
Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Susan F. McCall, January 28, 2016
Appellant-Plaintiff, Court of Appeals Case No.
82A01-1507-CT-765
v. Appeal from the Vanderburgh
Circuit Court.
City of Washington, The Honorable David D. Kiely,
Judge.
Appellee-Defendant. Cause No. 82C01-1411-CT-5309
Friedlander, Senior Judge
[1] Susan McCall appeals the trial court’s grant of the City of Washington’s motion
for summary judgment. Concluding that summary judgment was proper, we
affirm.
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[2] Susan presents two issues, which we consolidate and restate as: whether the
trial court erred by granting summary judgment for the City of Washington.
[3] On January 15, 2013, Susan was attending an event being held at Our Lady of
Hope Catholic Church in Washington, Indiana. On her way to the church,
Susan tripped and fell on the sidewalk adjacent to the church’s property. As a
result of her fall, Susan suffered injuries that required hospitalization. On
January 16, 2013, Scott McCall, a relative of Susan’s, spoke with a
representative of the church who informed him that the church was not
responsible for the upkeep of the sidewalks and that it is the city’s responsibility
to repair and maintain the sidewalks. Scott then went to the Mayor’s office
where he explained that Susan had fallen on a broken sidewalk adjacent to the
church the previous day, had been injured, and was hospitalized. Scott was
informed by the Mayor that the church, not the city, was responsible for the
upkeep of the sidewalks where Susan fell. The Mayor told Scott that it was the
church’s responsibility to pay any settlement as a result of Susan’s fall, and
Scott was provided with a copy of the city ordinance concerning sidewalk
repair. Scott then returned to the church where he was informed that the
Mayor had contacted them. A representative of the church also told Scott that
the church would pay Susan’s medical bills. Subsequently, Susan filed suit
against the Catholic Diocese of Evansville, the church Bishop, and the City of
Washington. The City filed a motion to dismiss, and Susan filed a response.
Following a hearing on the matter, the trial court granted the City’s motion to
dismiss, and this appeal ensued.
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[4] The City filed a motion to dismiss Susan’s claim pursuant to Indiana Trial Rule
12(B)(6) based upon its contention that she had failed to comply with the notice
provision of the Indiana Tort Claim Act (ITCA). In her response, Susan relied
on Scott’s affidavit as well as other materials, thus converting the City’s motion
to one of summary judgment. See Ind. Trial Rule 12(B). Accordingly, on
appeal we will treat the trial court’s dismissal of Susan’s complaint as a
summary judgment for the City. See Carmeuse Lime & Stone v. Illini State
Trucking, Inc., 986 N.E.2d 271 (Ind. Ct. App. 2013) (treating motion to dismiss
as motion for summary judgment where trial court considered evidence outside
pleading in deciding motion to dismiss).
[5] On appeal from a grant or denial of summary judgment, our standard of review
is identical to that of the trial court: whether there exists a genuine issue of
material fact and whether the moving party is entitled to judgment as a matter
of law. Winchell v. Guy, 857 N.E.2d 1024 (Ind. Ct. App. 2006); see also Ind.
Trial Rule 56(C). Appellate review of a summary judgment motion is limited
to those materials designated to the trial court. Pond v. McNellis, 845 N.E.2d
1043 (Ind. Ct. App. 2006), trans. denied. All facts and reasonable inferences
drawn therefrom are construed in favor of the non-movant. Id. Further, we
carefully review a grant of summary judgment to ensure that a party was not
improperly denied its day in court. Id. The party appealing the judgment
carries the burden of persuading the appellate court that the trial court’s
decision was erroneous. Bradshaw v. Chandler, 916 N.E.2d 163 (Ind. 2009).
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[6] Compliance with the ITCA is a question of law properly left to the court.
Brown v. Alexander, 876 N.E.2d 376 (Ind. Ct. App. 2007), trans. denied. A
judgment based on non-compliance with the ITCA is subject to review as a
negative judgment, and we will reverse the trial court’s determination only if it
is contrary to law. Id.
[7] The ITCA provides that a claim against a political subdivision is barred unless
notice of the claim is filed within 180 days after the loss occurs. Ind. Code § 34-
13-3-8 (1998). The notice required by the ITCA consists of a short and plain
statement of the facts on which the claim is based, including “the circumstances
which brought about the loss, the extent of the loss, the time and place the loss
occurred, the names of all persons involved if known, the amount of the
damages sought, and the residence of the person making the claim at the time
of the loss and at the time of filing the notice.” Ind. Code § 34-13-3-10 (1998).
Further, the notice of claim is required to be in writing and delivered in person
or by registered or certified mail. Ind. Code § 34-13-3-12 (1998). Not all
failures to comply with the requirements of these statutes, however, have
proven fatal to a claim; in certain cases non-compliance has been excused based
on theories of substantial compliance, waiver, and estoppel. City of Tipton v.
Baxter, 593 N.E.2d 1280 (Ind. Ct. App. 1992).
[8] Susan concedes that she did not file a written notice of her claim as required by
Indiana Code section 34-13-3-12 but contends that she substantially complied
with the notice requirements of the ITCA such that the trial court’s grant of
summary judgment for the City is in error. The City responds that Susan did
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not substantially comply with the ITCA because she did not affirmatively state
her intent to pursue a claim against it.
[9] The purpose of the notice requirement is to inform the governmental entity with
reasonable certainty of the incident and surrounding circumstances so that it
may investigate, determine its possible liability, and prepare a defense to the
claim. Fowler v. Brewer, 773 N.E.2d 858 (Ind. Ct. App. 2002), trans. denied. In
order to constitute substantial compliance, the notice must not only inform the
governmental entity of the facts and circumstances of the alleged injury but
must also advise of the intent of the injured party to assert a tort claim. Id. The
question of substantial compliance with the dictates of the ITCA, although fact
sensitive, is a question of law for the court. Ammerman v. State, 627 N.E.2d 836
(Ind. Ct. App. 1994).
[10] Here, the designated evidence shows that the day after Susan’s fall, Scott
informed the Mayor of the incident, Susan’s injuries, and her hospitalization.
As Susan concedes, she did not file a written notice of her claim against the
City; instead, she relies on Scott’s conversation with the Mayor to serve as her
notice under the ITCA. Although Scott verbally informed the City in a timely
fashion of the circumstances of Susan’s fall, there is no evidence that the City
was given any notice, written or otherwise, of Susan’s intent to take legal
action. This is not sufficient to fulfill the notice requirement of the ITCA. See
Rudnick v. N. Ind. Commuter Transp. Dist., 892 N.E.2d 204 (Ind. Ct. App. 2008)
(holding that although governmental entity knew description of incident, time
and place of injury, names of persons involved, and claimant’s address, medical
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expenses and time away from work, claimant did not substantially comply with
notice requirements of ITCA because governmental entity was not made aware
of claimant’s intent to sue), trans. denied; Brown, 876 N.E.2d 376 (summary
judgment for governmental entity affirmed because, although governmental
entity had knowledge of claimant’s injury, an opportunity to investigate, and
was at fault for accident, claimant failed to give notice of her claim); Orndorff v.
New Albany Hous. Auth., 843 N.E.2d 592 (Ind. Ct. App. 2006) (holding no
substantial compliance with ITCA where governmental entity knew of incident,
helped police locate witnesses, and discussed possibility of lawsuit in days
following incident but received no notice of claimant’s intent to pursue legal
action within 180 days of incident), trans. denied; and McConnell v. Porter Mem’l
Hosp., 698 N.E.2d 865 (Ind. Ct. App. 1998) (affirming summary judgment for
hospital where hospital had incident report containing date and time of
incident, description of incident, witnesses, and name of injured party, but it
was not advised of injured party’s intent to assert tort claim), trans. denied.
[11] In the alternative, Susan argues that the City was estopped from asserting her
non-compliance with the notice provisions of the ITCA because the Mayor
concealed the City’s liability. The theory of estoppel focuses on representations
made by the governmental entity or its agents to the claimant, which induce the
claimant reasonably to believe that formal notice is unnecessary. Brown, 876
N.E.2d 376. This Court has summarized the requirements for applying the
estoppel doctrine in the context of the ITCA:
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[W]hen responsible agents or officials of a city have actual
knowledge of the occurrence which causes injury and they
pursue an investigation which reveals substantially the same
information that the required notice would provide, and they
thereafter follow a course of action which would reasonably lead
a claimant to conclude that a formal notice would be
unnecessary, . . . [and] [i]f the claimant, as a result of such
municipal conduct, in good faith fails to act, or acts thereon to
his disadvantage, then an estoppel against the requirement of the
notice may be said to arise.
Coghill v. Badger, 418 N.E.2d 1201, 1209 (Ind. Ct. App. 1981). In summary, a
mere investigation by agents or officials of a governmental entity, by itself, will
not necessarily produce an estoppel; rather, the estoppel occurs when there is an
investigation followed by action in relation to the claimant that would lead a
reasonable person to conclude that further notice is unnecessary. Id.
[12] Applying these principles to the designated evidence, we conclude the City was
informed of the time, place, cause, and nature of the accident, as well as the
general nature of Susan’s injuries. The designated evidence does not
demonstrate, however, that the City investigated the facts at all, much less to
determine its liability or to prepare a defense, which is the purpose of the notice
requirement. See Fowler, 773 N.E.2d 858 (stating that purpose of notice
requirement is to inform governmental entity of incident so it may investigate,
determine liability, and prepare defense). Additionally, the designated evidence
does not establish that after an investigation, the City took action that would
reasonably lead Susan to conclude that formal notice was unnecessary. At
most, the designated evidence shows that Scott informed the Mayor of the
circumstances of Susan’s fall, the Mayor indicated that repair and maintenance
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of the sidewalk upon which Susan fell is the responsibility of the church, he
provided Scott with a copy of a city ordinance stating as much, and he stated
his belief that the City was not liable. Thus, without evidence to show that the
purposes underlying the notice requirements have been satisfied (i.e.,
investigation of all the facts to determine liability and prepare a defense) and
that the City followed a course of action which would reasonably lead Susan to
conclude that formal notice is unnecessary, the estoppel doctrine is not
applicable. See Delaware Cnty. v. Powell, 272 Ind. 82, 393 N.E.2d 190 (1979)
(stating that when acts and conduct of defendant or his agents have established
that purposes of notice statute have been satisfied, these acts and conduct could
create estoppel); see also Coghill, 418 N.E.2d 1201 (stating that investigation
followed by course of action which would reasonably lead claimant to conclude
that formal notice is unnecessary may create estoppel).
[13] Susan did not substantially comply with the notice provisions of the ITCA, and
the evidence did not show that the theory of estoppel was applicable in this
case. Summary judgment for the City was appropriate.
[14] Judgment affirmed.
[15] Bailey, J., and Crone, J., concur.
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