Carr v. Town of Shubuta

733 So. 2d 261, 1999 Miss. LEXIS 72, 1999 WL 62772
CourtMississippi Supreme Court
DecidedFebruary 11, 1999
Docket96-CT-01266-SCT
StatusPublished
Cited by117 cases

This text of 733 So. 2d 261 (Carr v. Town of Shubuta) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carr v. Town of Shubuta, 733 So. 2d 261, 1999 Miss. LEXIS 72, 1999 WL 62772 (Mich. 1999).

Opinion

733 So.2d 261 (1999)

Agnes CARR
v.
TOWN OF SHUBUTA.

No. 96-CT-01266-SCT.

Supreme Court of Mississippi.

February 11, 1999.
Rehearing Denied April 29, 1999.

C. Victor Welsh, III, Crymes G. Pittman, Jackson, Peter K. Smith, Quitman, Attorneys for Appellant.

J. Richard Barry, Houston, TX, Mark H. Tyson, Jackson, Attorneys for Appellee.

EN BANC.

*262 ON PETITION FOR WRIT OF CERTIORARI

McRAE, Justice, for the Court:

¶ 1. This appeal evolves from a personal injury action filed by the appellant Agnes Carr against the Town of Shubuta because of injuries she received as a result of an alleged fall on a sidewalk constructed and maintained by the municipality. Summary judgment was granted based upon Carr's failure to comply with the notice of claim provisions of Miss.Code Ann. § 11-46-11 (Supp.1998) of the Mississippi Tort Claims Act. Finding that Carr did in fact substantially comply with the notice of provisions of the Act, we reverse the judgment of the Court of Appeals and remand.

FACTS

¶ 2. On October 13, 1993, Agnes Carr was injured when she slipped and fell on a public sidewalk in Shubuta, Mississippi, sustaining a broken and dislocated elbow requiring corrective surgery. Shortly after the incident a city police officer prepared an incident report which was turned in and submitted to the city clerk. On October 19, 1993, Carr signed a "Report of Public Liability" at the office of the city clerk.[1] This document, provided by the city, contained all the information required by the notice of claim provisions of § 11-46-11, except the amount of damages sought, although her injuries were described generally, i.e. dislocated elbow, chipped bone, pulled ligament, loose teeth, scratches, and broken glasses. The notice also gave the name of her primary physician. Her monetary damages were unknown at the time as her medical treatment was ongoing. Correspondence between the city and its insurer, the Mississippi Municipal Liability Plan MMLP, obtained during discovery, indicates that Carr continued to inform the city of her condition.[2] It is uncontroverted that the mayor ultimately received notice of the accident and injury shortly afterward. There were numerous contacts, oral and written, between the MMLP adjuster and Carr and later Carr's counsel. A thorough investigation of the incident was promptly conducted by the city and the adjuster. The adjuster obtained copies of Carr's medical records through a release she timely executed in favor of the MMLP who by this time was acting on behalf of Shubuta and was actively engaged in settlement negotiations.

¶ 3. Settlement negotiations broke down, and on December 2, 1994, one year and ninety days after her fall, Carr filed the Circuit Court of Clarke County a personal injury lawsuit against the Town of Shubuta alleging that the town had failed to exercise ordinary and reasonable care in inspecting and maintaining the sidewalk. On December 1, 1994, her counsel had sent a letter to the city notifying same of his intent to file suit.

¶ 4. On December 30, 1994, the Town of Shubuta filed its answers and defenses to Carr's complaint and denied negligence on the part of the town and affirmatively asserted that Carr's claim was barred by the notice of claim provision of the Tort Claims Act, and secondly, that the claim was barred because the defect in the sidewalk was open and obvious. In granting summary judgment in favor of the Town of Shubuta, the trial court found that Carr had failed to comply with the notice requirements of Miss.Code Ann. § 11-46-11 (Supp.1998), and did not address the "open and obvious" issue.[3]

*263 ¶ 5. The Court of Appeals, justifiably relying on previous opinions of this Court requiring strict compliance with the notice of claim provisions of the Act, affirmed the judgment of the trial court and denied the petition for rehearing. This Court granted certiorari on Carr's petition.

ANALYSIS

¶ 6. In Reaves v. Randall, 729 So.2d 1237 (Miss.1998), this Court adopted a substantial compliance standard with respect to the notice of claim requirements of the Tort Claims Act. To the extent that Reaves and the opinion in this case conflict with City of Jackson v. Lumpkin, 697 So.2d 1179, 1182 (Miss.1997), Carpenter v. Dawson, 701 So.2d 806, 808 (Miss.1997), and Holmes v. Defer, 722 So.2d 624 (Miss. 1998), which require strict compliance, Lumpkin, Carpenter, and Holmes are hereby overruled.

¶ 7. In Pruett v. City of Rosedale, 421 So.2d 1046, 1052 (Miss.1982), this Court abolished the judicially created doctrine of sovereign immunity for general tort liability, leaving the Legislature the responsibility to place limitations on governmental liability within constitutional limits. Presley v. Mississippi State Highway Comm., 608 So.2d 1288, 1291 (Miss.1992)(plurality opinion).

¶ 8. Many other jurisdictions having notice of claim requirements as a prerequisite to filing suit against the state or political subdivisions have adopted substantial compliance in some form. Most of those have determined that the purpose of such a notice requirement is to give the governmental entity an opportunity to investigate the claim and notifying the appropriate agencies or officials of dangerous conditions or inappropriate conduct to allow for corrective or remedial measures, as well as to permit or encourage amicable settlement with the citizenry and/or prepare a defense to the claim. Felder v. Casey, 487 U.S. 131, 142-43, 108 S.Ct. 2302, 2309, 101 L.Ed.2d 123, 140-41 (1988); Blohm v. Emmet County Bd. of County Road Comm., 223 Mich.App. 383, 565 N.W.2d 924, 926 (1997); Collier v. Prater, 544 N.E.2d 497, 498 (Ind.1989); Fritsch v. St. Croix Central School Dist., 183 Wis.2d 336, 515 N.W.2d 328, 331 (Ct.App.1994).

¶ 9. However, such a requirement should not act as a barrier allowing the state to defeat totally the purpose of the act itself. Admittedly, the act is intended to limit the government's liability for tortious conduct, just as the Worker's Compensation Act was intended to limit the exposure of Mississippi employers, but it is also intended to allow for the orderly administration of legitimate claims against governments for such tortious conduct, and like the workers' compensation act, serves as an exclusive remedy for such claims. As the Indiana Supreme Court stated in Collier, supra.,

The purpose of the notice statute being to advise the city of the accident so that it may promptly investigate the surrounding circumstances, we see no need to endorse a policy which renders the statute a trap for the unwary where such purpose has in fact been satisfied.
Thus, a notice is sufficient if it substantially complies with the content requirements of the statute. What constitutes substantial compliance, while not a question of fact but one of law, is a fact-sensitive determination.

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Bluebook (online)
733 So. 2d 261, 1999 Miss. LEXIS 72, 1999 WL 62772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carr-v-town-of-shubuta-miss-1999.