DeHusson v. City of Anchorage

583 P.2d 791, 1978 Alas. LEXIS 712

• Court: Alaska Supreme Court
• Decided: July 28, 1978
• Docket: 2996
• Status: Published

Opinions

OPINION

Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR and BURKE, JJ., and DIMOND, J. Pro Tern.

RABINOWITZ, Justice.

The central issue in this appeal involves a challenge to the notice of claims for injuries section of the Anchorage City Charter which provides, in part:

(a) The city shall not be liable in damages for injury to person or property by reason of negligence of the city, unless, within one hundred twenty (120) days after such injury occurs, the person damaged or his representative causes a written notice to be served upon an officer of the city upon whom process may be served by law. Such notice shall state that such person intends to hold the city liable for such damages and shall set forth substantially the time and place of the injury, the manner in which it occurred, the nature of the act or defect complained of, the extent of the injury so far as known, and the names and addresses of witnesses known to the claimant.

(b) No person shall bring action against the city for damages to person or property arising out of any of the reasons or circumstances aforesaid, unless such action is brought within the period prescribed by law, nor unless he has first presented to the clerk a claim in writing and under oath, setting forth specifically the nature and extent of the injury and the amount of damages claimed. The clerk shall refer the claim to the city manager, who must promptly present such claim to the council for action.¹

Appellant Rosemary DeHusson, as representative of the estate of Walter DeHusson, instituted a wrongful death action in the superior court against appellee City of Anchorage and several construction companies for the death of her minor son, Walter, who drowned when swept underwater through an open spillway into a large culvert which was part of the Westchester Lagoon recreation project under construction by the city of Anchorage and its contractors.

No notice of claim as required by the Anchorage City Charter was given to the municipality within the prescribed, 120-day period. Subsequent to appellant’s commencement of the superior court action, the municipality moved for summary judgment upon the ground that appellant had not complied with the notice of claim requirements of Section 1.10 of the Charter of the City of Anchorage. The superior court granted the motion for summary judgment and this appeal followed.²

Our recent opinion in Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska, 1978) is dispositive of the instant ease; accordingly, it is unnecessary to reach the issues argued by appellant. In Johnson, we concluded that a similar notice of claims provision in the Fairbanks City Charter³ was invalid because impliedly prohibited by the two-year statute of limitations:

The two-year statute of limitations reflects a state policy that a plaintiff’s commencement of action is the affirmative step necessary to assure that his assertion of a claim is timely. The uniform limitations period allows every victim of tor-tious conduct in Alaska, regardless of where he resides and regardless of whether the alleged tortious conduct was by a governmental unit or not, to commence an action for damages within two years without complying with any other time limit. We think the notice of claims provision in the Fairbanks City Charter seriously impedes implementation of this statewide legislative policy and therefore is impliedly prohibited.

As we noted in Maier v. City of Ketchikan, 403 P.2d 34, 36 (Alaska 1965), the purposes served by notice of claim provisions differ, in theory, from the purposes of limitations statutes. Despite these non-conflicting purposes and the laudable goals underlying the notice of claim requirements, we think the practical effect of the city charter provisions is to nullify the state legislature’s establishment of a two-year period for commencing tort actions. That is, even though the two years permitted for commencing an action would still apply through AS 09.65.070, the right to bring an action in Alaska’s courts would be contingent upon giving a notice of claim within a substantially shorter period of time. If the injured person failed to give notice within the prescribed time, he would be barred from pursuing his remedy in state courts, despite the fact that his action would be timely under the two-year statute of limitations.

In light of the foregoing considerations, we conclude that AS 09.65.070 impliedly prohibits municipalities from requiring a potential plaintiff to submit notice of tort claims, as a condition to bringing an action, within a period shorter than the period provided by the statute of limitations.⁴

Accordingly, Section 1.10 of the Anchorage City Charter, which bars actions against the city unless the required notice of claim has been filed within 120 days after the injury occurs, is invalid. The superior court’s grant of summary judgment is reversed, and the case is remanded for further proceedings.

Reversed and remanded.

MATTHEWS, J., not participating.

1 . Section 1.10, Anchorage City Charter. Subsections (c) and (d) of this section read:

(c) Failure to give notice of injury or present a claim within the time and in the manner provided shall bar any action upon such claim.

(d) This section shall not be deemed to waive any defense of immunity which the city may have from claims for damages arising out of negligence, but shall apply in all cases where such defense is not available to the city.

The applicable state statute of limitations is found in AS 09.10.070 and provides:

No person may bring an action (1) for libel, slander, assault, battery, seduction, false imprisonment, or for any injury to the person or right of another not arising on contract and not specifically provided otherwise . unless commenced within two years.

2 . Appellant seeks to raise three issues in this appeal:

(1) Whether Section 1.10 of the Anchorage City Charter, providing for a 120-day period within which a claimant must supply the city with written notice of his or her tort claim as a condition precedent to holding the city liable, violates the equal protection clauses of the United States and Alaska constitutions;

(2) Whether the superior court was correct in ruling that the city was not estopped to raise the defense of failure to give notice pursuant to Section 1.10;

(3) Whether Section 1.10 of the City Charter of Anchorage, regarding “injury,” is applicable to cases involving death.

A few states recently have agreed with appellant’s equal protection argument and have invalidated notice of claims provisions on the ground that equal protection guarantees would be violated by dividing tort victims into two subclasses: the victims of governmental negligence who must meet notice requirements and the victims of private negligence who are subject to no such requirements. See Reich v. State Highway Dep’t, 386 Mich. 617, 194 N.W.2d 700 (1972); Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 (1973). cert, denied, 414 U.S. 1079, 94 S.Ct. 598, 38 L.Ed.2d 486 (1973); Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845 (1975). The notice of claim provisions considered by these courts were contained in state statutes rather than in municipal charters or ordinances. Criticism of the Reich opinion can be found in Copperrider, The Court, the Legislature, and Governmental Tort Liability In Michigan, 72 Mich.L.Rev. 187, 272 (1973). Other courts have upheld notice of claims provisions on the ground that a rational basis exists for the legislative classifications created by the notice provisions and that the sovereign’s waiver of governmental immunity was only conditional or partial. See Note, Notice of Claim Provision: An Equal Protection Perspective, 60 Cornell L.Rev. 417, 431 (1975). For the reasons stated in this opinion, we need not reach appellant’s constitutional argument.

3 . See Johnson v. City of Fairbanks, 583 P.2d 181 at 182, n. 3, (Alaska, 1978).

4 . Id. at 187 (footnote omitted).