Gallegos Ex Rel. Gallegos v. Midvale City

492 P.2d 1335, 27 Utah 2d 27, 1972 Utah LEXIS 904

• Court: Utah Supreme Court
• Decided: January 19, 1972
• Docket: 12312
• Status: Published

Opinions

CROCKETT, Justice:

Delores Gallegos, age 2, was injured when her tricycle collided with a fence defendant Roby A. Tester had placed around a newly planted lawn in the area between the sidewalk and gutter in front of his home at 570 Adams Street in Midvale. Her father Fidel Gallegos, as guardian ad litem, sued Mr. Tester and Midvale City alleging their negligence in so placing the fence. The accident occurred in July 1, 1966; and the notice and claim was not filed with the city until seven months later, on February 26, 1967.

On the basis of the pleadings, depositions and documentary evidence, the district court granted summary judgment as to the defendant Midvale City on the ground that notice of claim had not been given to the city as required by the following sections of our statutes:

10-7-77: Every claim against a city . for damages or injury, alleged to have been caused by the defective, unsafe, dangerous . . . condition of any street, alley, crosswalk, sidewalk, . of such city or town, . shall ivithin thirty days after the happening of such injury or damage be presented to the board of commissioners or city council of such city . . . and no action shall be maintained . . . unless it appears that the claim for which the action was brought was presented as aforesaid . . . [Emphasis added.] 10-7-78: Failure to file, a bar— It shall be a sufficient bar to any action . . . mentioned in section 10-7-77, that such claim had not been presented to the governing body of such city . . . within the time specified in section 10-7-77; .

The first point raised by plaintiff is that the “parking strip” between the sidewalk and the curb, is not part of the street, and therefore not governed by the requirement in that statute that the claim be filed within thirty days. It is undisputed that the city is the owner of the entire street area, from the private property line on the east side to the property line on the west side of the street. We are not at all persuaded by the argument that terms “street, alley, crosswalk, sidewalk, . . . ” should be so closely interpreted as to indicate only the area used in pedestrian or vehicular travel. But as applicable here we think the statute covers the entire area from the private property line on one side of the street to the other. Such language is quite generally held to include the parking strip between the curb and the sidewalk or the building line.¹

Plaintiff’s other point is that the injured child, being but two years old, should not be barred from bringing her action because of failure to give notice within the thirty days as prescribed by said Sec. 10-7-77. To be considered in connection therewith is another statute, part of the statute of limitations, Sec. 78-12-36, U.C.A.19S3, which provides:

If a person entitled to bring an action, other than for the recovery of real property, is at the time the cause of action accrued, . . . :

(1) Under the age of majority;

The time of such disability is not a part of the time limited for the commencement of the action.

There thus arises the question as to where the emphasis should be placed and precedence given as between two statutes which seem to overlap, and where a literal application of either, if the other did not exist, would produce a different result. In resolving such a problem, it is helpful to seek assistance in rules of statutory construction, policy considerations, and deci-sional precedents.

The Doctrine of Sovereign Immunity which would ordinarily protect the City from such a suit was part of the common law and thus part of the body of law which was assimilated into the law of this jurisdiction at statehood.² The allowance of a claim against the city for injuries which may be suffered because of the “ . . . defective, unsafe, dangerous . . . condition of any street . . . ” is a statutorily created exception to the Doctrine of Sovereign Immunity. Inasmuch as the maintenance of such a cause of action derives from such statutory authority, a prerequisite thereto is meeting the conditions prescribed in the statute.³ A party seeking to obtain the benefit thereof should not be entitled to claim the favorable aspects which confer the rights, and disavow the conditions upon which the rights are predicated. As applied here, that principle harmonizes with the rule of .statutory construction that the statute dealing with the specific subject will usually be given preference over a statute of a general nature.⁴

There are very good reasons for the provision in Sec. 10-7-77 which requires that notice shall be given within thirty days to the

. . . city council of such city . in writing, . . . properly verified, stating the particular time . . . and describing the particular place .

This alerts the public authorities so that a proper and timely investigation of the claim can be made. Under the contention of the plaintiff the necessity for filing such a notice would be extended during the entire time of a disability including a child’s minority. Such an interpretation would have the effect for all practical purposes of depriving the City of any advantage conferred by the notice requirement. The unsatisfactory aspects of such a situation: Deprivation of the city of an opportunity to make a prompt investigation of the particular case, and if any defect is found to exist to remedy it; the possibility that changes may have occurred in the material circumstances; and the carry-over to subsequent city administrations of responsibility for accidents that may have previously occurred, are sufficiently obvious not to require further elaboration.

This court was confronted with the same problem in the case of Hurley v. Bingham.⁵ There an eight year old child was injured when he collided with an obstruction in the street. In order to avoid the notice requirement, the plaintiff invoked the then existing statute, Sec. 6480, C.L.U.1917 (similar to Sec. 78-12-36 quoted above) the general provision tolling the statute of limitations. The court rejected the plaintiff’s contention pointing to the specificity of the then extant statutes, Secs. 816 and 817, C.L.U.1917 (In pertinent parts the same as our present Secs. 10-7— 77 and 78 referred to above). It placed emphasis on the language of Sec. 817 that: “It shall be a sufficient bar to any action that such claims had not been presented to the City Council ... in the manner and within the time Sec. 816 specified [thirty days] . . .” and noted that it “made no exceptions whatever, either on account of age or mental or physical infirmity, . . . .” The court stated that “. . . the right to any damages at all is purely statutory, it can only he availed of when there has been a reasonable effort to comply with the conditions upon which the right is conferred.”

These further observations are to be made with respect to the plaintiff’s contentions. Even if it were supposed that the parking area is not part of the street and thus not governed by Sec. 10-7-77, it would then be governed by the Waiver of Governmental Immunity Act, Chap. 139, S.L.U.1965. Under Sec. 13 thereof (Sec. 63-30-13, U.C.A.19S3) the claim would have had to be filed within 90 days, so the plaintiff’s claim would have been filed much too late. It is also important that said Section 13 expressly provides that any liability for defective streets is governed by Sec. 10-7-77. This is a later clear and unequivocal reaffirmation by the legislature of the law as decided in the Hurley case, supra.

Argument is also made that holding the plaintiff to the 30 day notice requirement of the statute deprives her of equal protection of the laws. In addition to the practical considerations necessary for the protection of the public entity referred to herein, it should also be had in mind that the little girl’s welfare was being looked after by her parents as her natural guardians. They were as fully aware of her injuries and the cause thereof as if it had happened to one of themselves, and they could have proceeded earlier, the same as any other person who claimed to be injured or damaged because of the City’s fault.

We have no disagreement with the proposition that if an error has been committed in the judicial interpretation or application of the law it should not be regarded as so cast in concrete that it must live in perpetuity. When such an error is recognized, the same authority which made it has the power, and should have the willingness, to correct it.⁶ Nevertheless, any contemplated change in the decisional law requires due consideration for the values in the doctrine of stare decisis. One of the primary purposes and the most important attributes of the law is that there be a system of rules which have solidarity and continuity so that people can know what the law is and place reliance thereon and govern themselves accordingly. For these reasons the law should not he changed except for persuasive reasons and when it is clear that there has been made a plain and obvious error. Viewed in the light of those principles, we do not think that the rule of the Hurley case, supra, which has been the law adjudicating the statutes under scrutiny here for nearly a half century, should be changed judicially. If there is to be any change therein it should be done by a clear expression to that effect by the legislature.⁷

Affirmed. The parties to bear their own costs.

CALLISTER, C. J., and TUCKETT and HENRIOD, JJ., concur.

1 . City of Holdenville v. Talley, 205 Okla. 693, 240 P.2d 761 (1952); Morris v. Salt Lake City, 35 Utah 474, 101 P. 373 (1909).

2 . See. 68-3-1, U.C.A.1953.

3 . For a good statement concerning the principle that public entities may be sued only upon the conditions prescribed by the legislature, see Artukovich v. Astendorf, 21 Cal.2d 329, 131 P.2d 831 (1942); see also Redlands High Sch. Dist. v. Superior Ct., 20 Cal.2d 348, 125 P.2d 490 (1942).

4 . U. of U. v. Richards, 20 Utah 457, 59 P. 96 (1899), State v. Geurts, 11 Utah 2d 345, 359 P.2d 12 (1961).

5 . 63 Utah 589, 228 P. 213 (1924).

6 . Allen v. Board of Education, etc., 120 Utah 556, 236 P.2d 756; and cf. Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Salt Lake City v. Ind. Comm., 93 Utah 510, 74 P.2d 657.

7 . Davis v. Provo City, 1 Utah 2d 244, 265 P.2d 415.