Independent School Dist. of Boise City v. Callister

539 P.2d 987, 97 Idaho 59, 1975 Ida. LEXIS 360

• Court: Idaho Supreme Court
• Decided: August 12, 1975
• Docket: 11744
• Status: Published

Opinions

SHEPARD, Justice.

This is an original proceeding seeking a writ of mandate against a district judge. Parties to special proceedings are properly referred to as “plaintiff” and “defendant,” I.C. § 7-101, however, herein, to avoid confusing the parties here with those in the case below the litigants here are called “petitioners” and “respondent.” Petitioners here are defendants in a personal injury case in the district court. Plaintiff be- ' low, R. Scott Patterson, brought suit for damages resulting from personal injuries suffered during school hours. In the court below, petitioners moved for summary judgment, asserting that plaintiff had failed to comply with the requirements of I.C. § 6-906 and § 6-908 in that he failed to file a notice of claim with the proper governmental agency within 120 days of the time his cause of action arose. The district judge denied defendant’s motion for summary judgment on the ground that the said statutes do not apply to minors. Rather, the district judge granted a motion by plaintiffs to strike all those defenses relating to the notice of claim requirement. This case presents questions regarding the constitutionality of the notice statute; whether the statutory notice period is tolled during the minority and/or incapacitation of a claimant and whether actual notice tolls the statutory notice of claim requirement.

Patterson, (plaintiff below) was a student at Capital High School in Boise, Idaho and on November 24, 1971 was injured in a trampoline accident while participating in a physical education class at the school. He was a minor at that time but attained his majority on January 20, 1973. A claim for damages resulting from the accident was filed on May 7, 1973, almost a year and a half after the accident, but within 120 days of his attainment of majority. That claim was denied by the school district and suit instituted on November 23, 1973. Defendant below moved for summary judgment on the basis of failure to comply with the notice of claim statute which motion was denied. Plaintiff’s motion to strike the defenses related to the statutory notice of claim was granted. Upon application, this court issued its alternative writ ordering the district judge to show cause why his order granting plaintiff’s motion to strike and denying defendant’s motion for summary judgment should not be vacated and he be ordered to grant defendants’ motion for summary judgment.

A writ of mandate will not ordinarily issue to control the discretionary decision of a lower court, Freeman v. McQuade, 80 Idaho 387, 331 P.2d 263 (1958) ; Felton v. Prather, 95 Idaho 280, 506 P.2d 1353 (1973). However the parties hereto raise no issue as to that point. Petitioners contend that the failure of the district judge to apply the notice of claim statute was an abuse of his discretion and that the application of established law under undisputed facts require that his discretion can be exercised in but one way. They further argue that to require them to proceed to trial would involve only the determination of irrelevant collateral issues, would waste judicial resources and hence serve no purpose. They argue therefore that they are without a plain, speedy and adequate remedy in the ordinary course of law.

Whether a writ should issue in such circumstances is a matter committed to the discretion of this court. Hunke v. Foote, 84 Idaho 391, 373 P.2d 322 (1962). We deem the issues presented here to be of great moment and require speedy resolution. It is also clear that the issues, excepting only that discussed infra, are solely questions of law. Therefore, we are more liberal in the entertaining of a writ of mandate when dealing with new and important legal questions of statewide concern. See Rich v. Williams, 81 Idaho 311, 341 P.2d 432 (1959); Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). With the caveat that only under such extraordinary circumstances as are present here will the normal appellate processes be circumvented, this court issued its alternative writ and we now proceed to a consideration of the issues. Compare Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974).

I.C. § 6-906 provides:

“6-906. Filing claims against political subdivision — Time.—All claims against a political subdivision arising under the provisions of this act shall be presented to and filed with the clerk or secretary of the political subdivision within one hundred twenty (120) days from the date the claim arose or reasonably should have been discovered, whichever is later.”

I.C. § 6-908 requires compliance by filing claims as a prerequisite to an action against a governmental entity.

Our opinion in Newlan v. State and Agost v. State, 96 Idaho 711, 535 P.2d 1348 (1975), is dispositive of the arguments raised by respondents herein regarding the unconstitutionality of the statute. Therein we further stated that compliance with the statute is mandatory. In Newlan and Agost we further held that there was not present actual notice to the state so as to make literal compliance unnecessary and in this regard we distinguished Jorstad v. City of Lewiston, 93 Idaho 122, 456 P.2d 766 (1969).

This case, however, presents new questions not encompassed by the facts of Newlan or Agost. Plaintiff below argues first that because the Independent School District of Boise operates by virtue of a charter from the Idaho Territorial Legislature it is not subject to the notice of claim requirement of the Idaho Tort Claims Act because such is general legislation and only special legislation affects the said Independent School District. Bagley v. Gilbert, 63 Idaho 494, 122 P.2d 227 (1942). Bagley, however, provides that the provisions of a special charter supersede and prevail over any inconsistent provisions contained in the general law pertaining to matters of a local concern. We find no provision of the Tort Claims Act to be inconsistent with any provision of the special charter of the school district. The legislature included all public corporations within the definition of a “political subdivision” for purposes of the Idaho Tort Claims Act. Therefore, we hold that the statutory notice of claim requirement does apply to the Boise Independent School District.

Plaintiff below, also argued that the notice of claim is not required when recovery is sought from the liability carrier of the governmental entity. No insurance company is a party to the action and we find such argument to be without merit.

The district court accepted the argument of plaintiff there that the notice period of the statute is tolled during the minority of the claimant, particularly in view of the fact that he was incapacitated. (The record appears to be clear that plaintiff became a quadriplegic occasioned by the injuries sustained in the accident). Plaintiff below argued that he complied with the statute since he filed a notice of claim within 120 days of attaining his majority. That question has never been presented to this court but in other states there is a split in authority. See generally 34 A.L.R.2d 725 (1954), and 44 A.L.R.2d 1108 (1972). Other states and the district judge in the court below reason that minors should be excepted from the coverage of the statutory notice requirements since it would be unfair to deprive such a person of his claim because he could not act and others refused to act for him. A distinguishing factor is that in such cases the statutes have contained no reference to minors or the incapacitated. Such is not the case with the Idaho Tort Claims Act which provides in pertinent part in I.C. § 6-907:

“ * * * If the claimant is incapacitated from presenting and filing his claim within the time prescribed or if the claimant is a minor * * * the claim may be presented and filed on behalf of the claimant by any relative, attorney or agent representing the claimant.”

Such statutory language makes clear that minors and those suffering incapacities were not intended to be exempted from the requirements of the act.

Plaintiff below urges our adoption of the ruling of Cook v. State, 83 Wash.2d 599, 521 P.2d 725 (1974). In that case the plaintiff was a 13 year old girl who had been severely injured in an accident and was incapacitated until the statutory notice period had expired. Her mother was allegedly uneducated, grief stricken and failed to file the notice of claim for the child. The Washington court, relying heavily on Maier v. Ketchikan, 403 P.2d 34 (Alaska 1965), held that it would do violence to due process and equal protection concepts to apply that statute against the plaintiff, and the court concluded that in such cases where the facts of incapacity justified it, a reasonable time within which a claim could be filed would be 120 days following the removal of the disability. In Washington the statute provided that the claim must be filed “within one hundred twenty days from the date that the claim arose.” Cook v. State, 521 P.2d at 726. In Idaho, however, the statutory time is measured “from the date the claim arose or reasonably should have been discovered, whichever is later.” I.C. § 6-906 (Emphasis supplied). The Idaho statute has given greater consideration to disability than has the Washington statute and is more liberal in that regard. Therefore we are not required to apply a strained construction to our statute. Minority and incapacitation are but two factors which may be considered in deciding whether a claim reasonably should have been discovered.

It is undisputed here that plaintiff was both a minor and substantially incapacitated by his injury. However, it is also undisputed that plaintiff’s mother contacted a lawyer in connection with the injury immediately after the accident. This court has not had occasion to interpret the language “from the date the claim arose or reasonably should have been discovered * * * I.C. § 6-906. We now hold our statute requires a resolution of fact for the court below.

Respondent here argues that the notice of claim requirement is but a statute of limitations and thus tolled for minors. We reject that argument since the Tort Claims Act has an express statute of limitations which begins to run commencing with the filing of the notice of claim. I.C. § 6-911. Statutes of limitation in Idaho are not tolled by judicial construction but rather by the expressed language of the statute. See e. g., I.C. § 5-230. See also Fry v. Willamalane Park & Recreation District, 4 Or.App. 575, 481 P.2d 648 (1971).

Plaintiff below also argues that the governmental entity (defendant below) had substantial actual notice of the injury. Substantial actual notice was held to be an exemption from a statutory notice requirement in Jorstad v. City of Lewiston, 93 Idaho 122, 456 P.2d 766 (1969). In Newlan v. State, supra, we questioned the continued validity of Jorstad in light of subsequent events, i. e. the Idaho Tort Claims Act and Carter v. Allan, 94 Idaho 190, 484 P.2d 739 (1971). In Newlan, however, we distinguished Jorstad. Here, however, plaintiff argues correctly that the Jorstad rationale of “substantial actual notice” is applicable to the facts of this case. We agree. Nevertheless we disagree that Jorstad has any continued vitality and we now expressly overrule Jorstad insofar as it was therein held that plaintiffs were exempt from notice of claim requirements because of minority, “substantial actual notice” having been given or because of the relative size of the governmental units, i. e., a city as contrasted with a state.

The alternative writ is made permanent insofar as it requires the district judge to vacate his order striking all defenses relating to the statutory notice of claim requirement. The alternative writ insofar as it requires the district judge to vacate his order denying summary judgment is modified and the district judge is directed to, if necessary, take further proof on the question of whether or not plaintiff’s claim should “reasonably have been discovered” within a time framework activating the requirements of the statutory notice of claim requirement and thereafter enter an order denying or granting the defense motion for summary judgment. In the event that district judge determines that the resolution of such question of fact is not appropriate upon a motion for summary judgment, he is authorized thereafter to deny plaintiff’s motion for summary judgment and proceed to trial for a resolution of that question. No costs allowed.

McQUADE, C. J., and SCOGGIN, D. ]., (Retired) concur.