¶1 This dispute is whether the term "claim" used in the Governmental Tort Claims Act (51 O.S. §§ 151-172) when giving notice to a defendant should be construed as the same as a "claim" for the purpose of pleading in an Oklahoma District Court? The short answer to this question is, yes, they are construed the same except when the Governmental Tort Claims Act (GTCA or Act) requires or allows a difference. We explain the judgment of the District Court is reversed and on remand the court must grant a new trial.
¶2 The plaintiffs are two couples who suffered damages as a result of a sewer backup. They filed notice of claims with the City of Oklahoma City. The City's claim form asks claimants to distinguish between claims for injury to (1) personal property other than a vehicle, (2) personal injury, and (3) injury to a vehicle. The City denied the claims. Plaintiffs brought an action in the District Court for Oklahoma County and alleged property damage as well as nuisance damages, discomfort, inconvenience, and annoyance. The case was tried before a jury. The jury awarded each couple an amount in excess of the statutory cap for property damages.
¶3 The trial court determined the Plaintiffs "filed their Petition seeking damages to their property and for personal injuries due to a sewer backup into their homes."2 The pretrial conference order notes plaintiffs' claims for both property damage and damages for annoyance, inconvenience and discomfort on a nuisance claim. The City brought three demurrers to the evidence at trial. On the first it argued "Plaintiffs have failed to make a prima facie case of negligence or nuisance" The trial judge responded: "Okay. Well, it would be overruled. They've made a prima facie case on those."3 The second argued the notice of claims with the City did not identify personal injury claims. The trial court sustained the demurrer on the evidence as to plaintiffs' nuisance personal injury claims based upon a conclusion that the GTCA notices were insufficient as a matter of law. The trial court then sustained a demurrer to the evidence arguing Deborrah Grisham did not file a tort claim. The proposed jury instructions on nuisance and personal injury were not given to the jury.
¶4 The trial judge determined only property damage had been asserted by plaintiffs in their pre-action governmental tort claim notice with the City of Oklahoma City. The trial court reduced the verdict to a judgment for each couple in amount of $25,000.00 for damage to property. The trial court's decision to reduce the award was based upon an issue of law, does the GTCA require a notice of claim to specify types of damage, damage to property and other damages, in order for the notice to be effective pursuant to the GTCA? The trial court denied plaintiffs' motion for new trial based upon its previous statutory interpretation of the GTCA. Generally, an abuse of discretion standard is used for appellate review of an order denying a motion for new trial.4 An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.5 An alleged error of law is reviewed on appeal using a de novo standard.6 The alleged error in this proceeding is the trial court's construction or meaning of the statutory GTCA notice. This alleged error is reviewed de novo.
¶5 Plaintiffs appealed and asserted they were entitled to an additional amount per couple as awarded by the jury. The Court of Civil Appeals affirmed. Plaintiffs' petition for certiorari was granted. Plaintiffs argue on certiorari the notice of claim given to a government entity need not specify with particularity different types of damages. The City argues a notice of claim must specify with particularity property damages and other damages.
¶6 The judge's decision in reducing the verdict is based upon two concepts: (1) a plaintiff must specify whether damages have occurred to (a) property or (b) "any other loss" as part of the pre-suit notice to the governmental entity, and (2) the absence of such specificity in the notice invalidates the notice as to either type of loss not specifically named with particularity in the notice. We agree with this approach due to the type of notices given by plaintiffs to the City, but reverse due to our prospective holding.
¶7 Notice and its elements are not mandatory and jurisdictional merely because notice is required in a given circumstance. Notice may be jurisdictional because the notice is used to alter a legally protected interest,7 or merely because procedure requiring the notice expressly makes it mandatory or jurisdictional, such as when the Legislature uses the term "shall" to indicate a legislative intent to create a mandatory requirement.8 We have observed that the notice specified by the GTCA is a "mandatory prerequisite jurisdictional requirement to filing a tort claim for damages."9
¶8 The GTCA uses the term "shall" and thereby appears to make certain attributes of the notice to be mandatory.
Any person having a claim against the state or a political subdivision . . . shall present a claim to the state or political subdivision for any appropriate relief including the award of money damages . . .
. . . A claim against . . . a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs.
. . . A claim against a political subdivision shall be in writing and filed with the office of the clerk of the governing body.
51 O.S. 2011 § 156 (A), (B), & (D) (material omitted).
In Minie v. Hudson,10 the Court noted a statutory amendment and language in § 156 requiring that notice of a claim "shall be in writing."11 We concluded this language is "normally considered as a legislative mandate equivalent to the term 'must', requiring interpretation as a command;" and we held the amendment superseded our previous opinion explaining a substantial compliance test applied to claimant's verbal notice to a governmental entity.12 No language in § 156 uses the term "shall" in connection with specifying with particularity property injuries and other types of injuries. We conclude plaintiffs' notices complied with the requirements for notice in § 156 which use the term "shall" for elements of the notice because of our prospective holding relating to a claimant's choice in giving a specific notice of a particular type of damage.
¶9 Section 156 refers to notice of a "claim" but does not define a claim for the purpose of notice. Section 152 of the Act defines a claim as follows.
4. "Claim" means any written demand presented by a claimant or the claimant's authorized representative in accordance with this act to recover money from the state or political subdivision as compensation for an act or omission of a political subdivision or the state or an employee;
51 O.S.2011 § 152 (4).
Identifying a claim by the nature of the loss, property or "any other loss," occurs in § 154 of the Act and is for the stated purpose of limiting liability. The definition of a claim does not require one to specify the type of damages with particularity.
A. The total liability of the state and its political subdivisions on claims within the scope of The Governmental Tort Claims Act, arising out of an accident or occurrence happening after the effective date of this act, Section 151 et seq. of this title, shall not exceed:
1. Twenty-five Thousand Dollars ($25,000.00) for any claim or to any claimant who has more than one claim for loss of property arising out of a single act, accident, or occurrence;
2. Except as otherwise provided in this paragraph, One Hundred Twenty-five Thousand Dollars ($125,000.00) to any claimant for a claim for any other loss arising out of a single act, accident, or occurrence. The limit of liability for the state or any city or county with a population of three hundred thousand (300,000) or more according to the latest federal Decennial Census . . . .
51 O.S.2011 § 154 (A) (1) & (2) (material omitted).
For the purpose of limiting "total liability" the Act distinguishes a claim based upon an injury to property from "any other loss" where the former is limited to $25,000.00 maximum liability and the latter a $125,000.00 liability. Section 154 splits "any claim . . . for loss of property" in one paragraph from "a claim for any other loss" in the next paragraph. This identification of "claims" for liability purposes also expressly references them to "arising out of a single act, accident, or occurrence." The limitation of liability statute, § 154, provides for splitting "claims" for the purpose of limits on liability and then ties these "claims" to language designating one cause of action or one claim, i.e., a single transaction or occurrence. The statutory limits tied to types of damage does not state that a notice of claim must state with particularity the type of damage in a notice of a claim.
¶10 The phrase arising out of a single act, accident, or occurrence in the GTCA is a reference to how a cause of action or a "claim" is defined in a District Court action. The Oklahoma Pleading Code made effective in 1984 uses the term "claim" as a functional equivalent to "cause of action" in several contexts.13 In a District Court proceeding, a cause of action or claim is not split into different claims or causes of action based upon whether injury occurred to the plaintiff's property versus his or her person. A cause of action in a District Court cannot be split and divided and made the subject of several suits or "claims," and all of the various items of damage plaintiff has suffered must be included in the one action unless the defendant has waived this requirement.14 We have explained "[a] cause of action embodies all theories of recovery or damages which emanate from one occurrence or transaction."15 A single cause of action or claim for the purpose of the pleading in District Court includes all types of damages arising out of a single act, accident, or occurrence as described in § 154.
¶11 Notice of a tort injury must be given to a governmental entity in the form of a claim before a party may file a District Court tort action against the governmental entity.16 The notice provision of the GTCA furthers the following legitimate state interests: (1) prompt investigation with fresh evidence; (2) opportunity to correct dangerous conditions; (3) quick and amicable resolution of claims; and (4) fiscal planning to meet possible liability.17 These factors were satisfied in the present case as to plaintiffs' property damage when plaintiffs used the claim forms provided by the City of Oklahoma City; provided their names, addresses, the date and time of damage, the name of the city's supervisor who investigated their damage, insurance information, and sought monetary relief for their property damage; then filed their written notices with the city clerk.
¶12 We agree that a statement of different types of damage claimed in the notice would help fiscal planning. However, the Legislature does not consider a notice of different damages a mandatory or jurisdictional element. Section 156 uses the term "shall" for the claim stating a "date, time, place and circumstances of the claim, the identity of the state agency or agencies involved, the amount of compensation or other relief demanded." But it also provides: "Failure to state either the date, time, place and circumstances and amount of compensation demanded, or any information requested to comply with the reporting claims to CMS under MMSEA shall not invalidate the notice unless the claimant declines or refuses to furnish such information after demand by the state or political subdivision."18 We must construe this language in § 156 as a consistent part of the whole statute,19 and § 156 as an individual statute of the GTCA must be viewed as part of a consistent whole.20 We decline to create subclasses of § 156 claims and hold either (1) "amount of compensation" means a plaintiff must, in a mandatory sense, specify different types of damages, or (2) "Failure to state . . . amount of compensation demanded" refers only to "claims to CMS under MMSEA" and make this element of notice mandatory for some claims and directory for others. None of the statutes at issue herein, 51 O.S. §§ 152, 154, or 156 state that specifying property damages versus other damages is a mandatory or jurisdictional requirement for providing the required GTCA notice of a claim. Plaintiffs' written notices of claim indicated they suffered an injury arising out of a single transaction or occurrence which became a single District Court cause of action or claim for damage. Plaintiffs' written GTCA notices substantially complied with the requirements of § 156 in providing notice of their claim to the City, but plaintiffs' made a choice in limiting their claims to property damage in their notices when they were not required to do so by § 156.
¶13 In Truelock v. City of Del City,21 the Court determined damages for inconvenience, annoyance, and discomfort associated with a sewer backup are not property damages, but damages for "any other loss" under 51 O.S.Supp.1994 § 154.A of the Governmental Tort Claims Act.22 In Kennedy v. City of Talihina,23 our Court of Civil Appeals used this language identifying different damages and applied it to create different "claims" for the purpose of giving notice to a government entity. This was accomplished by holding one party's notice of claim for property damage did not bar a subsequent suit based upon a second notice of claim for damages other than to property for that one party, as well as both property damages and other damages to other family members.24 The court concluded that the District Court "claim" for property damages was barred by failure to timely bring an action after denial of the first notice.25 The court then allowed a second GTCA "claim" for a different type of damages to serve as a basis for the lawsuit because it was timely brought after denial of the claim.26
¶14 The City of Oklahoma City argues that if plaintiffs in our case today may use their notice of a claim asserting property damages as a notice of other damages then Kennedy v. City of Talihina, supra, must be overruled. We disagree because of our prospective holding herein. We agree with Kennedy "there is nothing in the language of the GTCA that prohibits a claimant authorized to file a claim from filing a separate notice of claim for each separate type of compensable injury subject to these limitations [on the amount of damages in the GTCA]."27 There is nothing in the GTCA that prohibits splitting a notice of GTCA claims.
¶15 There is nothing in the GTCA prohibiting or requiring a single notice of a claim including all damages. There may be, of course, practical limits upon a claimant submitting more than one notice of a claim with different damages arising from the same transaction or occurrence. One practical limit is the effect of a governmental entity's denial of a claim and the commencement of the time to commence a District Court action without splitting a cause of action or failing to timely file to recover for certain damages. This latter issue was raised in Kennedy. The GTCA does require notice and timely filing in the District Court based upon denial of the claim by the governmental entity.28
¶16 Claimants and counsel should be aware of this potential procedural trap. Filing one notice of claim specifying all types of damages may assist in avoiding this and other issues, as well as assisting the governmental entity with investigation and budgetary concerns. But again, the GTCA does not require a single notice of claim or prohibit more than one notice of claim. Nothing prohibits a municipality from requesting additional information relating to a plaintiff's injuries when a notice of claim is filed.
¶17 If the GTCA allows a claimant to provide a "split notice" based upon the type of damage, then the Kennedy situation allows barring a split-notice GTCA claim. This is so because the right to file a District Court action is tied to the claim which was previously denied or deemed denied.29 If a split notice is allowed by the GTCA, were the notices of claims given by plaintiffs' split notices for only property damage and thus insufficient notices for a personal injury claim pursuant to Kennedy's reasoning? Was the City entitled to additional split notices for personal injury? The City is statutorily entitled to notice of a claim against it, and if a claimant decides to give notice of a claim based solely on property damage, then that claimant must also provide additional notice for "any other loss" as well if the claimant is to pursue a District Court action for "any other loss."30
¶18 This Court and the Legislature have not addressed this issue and it is a procedural trap for claimants since the § 154 limits for types of damage are not part of the mandatory requirements for providing a § 156 notice. Judicial policy determines whether, and to what extent, a new rule will operate retroactively.31 The pipeline doctrine is often used when a court applies a new rule of law to (1) the case before the court, and (2) cases in the litigation pipeline, and (3) interests capable of being litigated after the court's pronouncement.32 The trap-for-the-unwary doctrine acts as a partial mirror-image to the pipeline doctrine because the former specifies a new rule is not applied to (1) the case before the Court, or (2) cases in the judicial pipeline, or (3) a legal interest arising before the date of the court's opinion.
¶19 One example of the trap-for-the-unwary doctrine occurs when a poorly written statute or a not-so-clearly settled legal norm creates a veritable legal trap for the unwary.33 When this is present the Court will ameliorate the effect of its decision to provide evenhanded fairness.34 This concept has been applied when a required statutory notice is constitutionally deficient, or the statute possesses an inadequacy resulting in parties utilizing a legally flawed procedure, the statute has an incomplete attribute creating uncertainty in its application,35 or simply when a new and legally untested statutory procedure is capable of inconsistent applications. In Bomford v. Socony Mobil Oil Co.,36 we addressed the requirements for providing notice to parties when publishing notice in a newspaper circulated to the public. We explained "all procedural modifications enunciated herein shall not be construed as invalidating the publication process in this case" or in other legal proceedings where a final determination of the parties' legal interests had occurred.37 In Bushert v. Hughes,38 we relied on our 1964 opinion in Poafpybitty,39 and explained our explanation of a new and untested legal procedure would not apply to the party in that case.40 In Harry R. Carlile Trust v. Cotton Petroleum Corp.,41 a 1986 case involving the adequacy of notice, we explained "the new standards" would apply to notices provided after the effective date of the Court's opinion, and the party therein was not allowed to reap "a tangible benefit from its forensic triumph."42 Application of both the pipeline doctrine and the legal-trap-for-the-unwary doctrine are each used to accomplish several important public policies, two of which are: (1) All similarly situated litigants are treated the same by the courts; and (2) The law favors a procedure providing the People an opportunity to go foward with litigation which may lead to beneficial changes in the law.43 Fairness requires judicial recognition of (1) the interest of the municipality in receiving a notice identifying the nature of the claim against it, and (2) claimant's interest in giving notice of a claim which satisfies the requirements of the GTCA without an additional non-GTCA burden placed on claimant by the municipality. The form provided by the City of Oklahoma City expressly provided for a claimant giving notice of property damage as well as a claim for personal injury. Fairness also requires a court to recognize that a private-party claimant possesses personal discretion to file a self-limiting notice of claim where property damage is the only damage claimed, and a municipality may reasonably rely on a claimant's notice claiming property damage to determine whether such claim of property damage should be denied or paid. We hold the notices of claims in the present controversy were sufficient for the City to investigate, correct the situation, resolve the controversy, and determine possible liability for the claims of property damage, but were not sufficient for addressing claims for personal injury included in the District Court action.
¶20 We give today precedential effect to a point of procedural law that was not part of the § 156 mandatory procedure and this point was unresolved by the Court at the time critical to this controversy. We hold a claimant's notice of "property damage" without stating "any other loss" in the notice is a sufficient notice for property damage but is not a sufficient notice for any other loss. We hold this pronouncement will have purely prospective effect and shall apply when all four following conditions are present concerning a single notice of claim: (1) The notice of claim is filed with a governmental entity after the effective date of this opinion; and (2) The claimant's notice expressly claims "property damage;" and (3) The face of that notice contains no language by claimant indicating notice for any other damage or "any other loss;" and (4) That notice used by claimant is on a form expressly providing for a claimant giving notice for types of damage other than for "property damage."44 Due to our prospective holding construing a nonmandatory feature of GTCA procedure, we remand for further proceedings and a new trial.
¶21 Plaintiffs seek appellate relief in the form of reinstating the jury's verdict for an amount in excess of the property damage cap on damages. This relief is improper. Plaintiffs agree in their brief that a property damage claim is capped at $25,000.00 by the GTCA. Their brief argues what the jury could have found had the jury "been allowed to find the existence of a nuisance." The trial court did overrule the demurrer to the evidence on the personal injury "claim" finding a prima facie case had been presented by the evidence. However, the jury was not instructed on a personal injury nuisance claim.
¶22 A trial court has a duty to instruct on the decisive issues raised by the pleadings and the evidence.45 This rule is consistent with the function of jury instructions as well as the concept of fairness to both sides of the controversy.46 A plaintiff has a right to have his or her theories of recovery presented to the jury; the defendant has a similar right with regard to defenses. Both plaintiffs and the City have a right not only to present evidence relating to the personal injury/nuisance claims but also advocate for proper instructions on such evidence to be considered by a jury. New trials are granted when a trial court fails to instruct on critical legal theories in a case resulting in reversible error when a jury is misled.47
Conclusion
¶23 We hold a claimant's notice of "property damage" without stating "any other loss" in the notice is a sufficient notice for property damage but is not a sufficient notice for any other loss. We hold plaintiffs' GTCA notices of claim using the form provided by the City of Oklahoma City and claiming specific damage to their property were also required by the GTCA to provide notice of a claim for personal injuries (or "any other loss") arising from that same transaction or occurrence in order to bring their subsequent suit in District Court for both property damage and personal injury/nuisance. Our holding is prospective as explained herein. The opinion of the Court of Civil Appeals is vacated, the judgment of the District Court is reversed, and the matter is remanded with directions to grant plaintiffs a new trial on both their property and personal injury claims.
¶24 COMBS, C.J.; KAUGER, WATT, WINCHESTER, EDMONDSON, COLBERT, REIF, and WYRICK, JJ., concur.
¶25 GURICH, V.C.J., concur in part and dissent in part.