Sandra Creamer v. City of Bellevue

• Court: Court of Appeals of Kentucky
• Decided: May 29, 2026
• Docket: 2025-CA-0994
• Status: Unpublished

Opinion

RENDERED: MAY 29, 2026; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0994-MR

SANDRA CREAMER APPELLANT

APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE DANIEL J. ZALLA, JUDGE ACTION NO. 24-CI-00906

CITY OF BELLEVUE APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: EASTON, A. JONES, AND MOYNAHAN, JUDGES.

EASTON, JUDGE: This is a negligence action for injury sustained because of a

slip and fall on a sidewalk. Appellant Sandra Creamer (Creamer) asks us to

reverse an Order of the Campbell Circuit Court dismissing her Amended

Complaint against Appellee City of Bellevue (City) pursuant to CR1 12.02(f). The

circuit court held that Creamer’s notice to the City failed to supply information

1 Kentucky Rules of Civil Procedure. concerning the nature of her injuries sufficient to satisfy the mandatory notice

provisions of KRS2 411.110. Upon review of the record and applicable law, we

affirm.

FACTUAL AND PROCEDURAL HISTORY

On September 20, 2023, Creamer fell on a sidewalk at 401 Fairfield

Avenue in Bellevue. The fall occurred in front of a local business where the City

was performing repair work to the sidewalks in the area. On October 4, 2023,

Creamer, through her attorney, sent by certified and regular mail a letter to both the

Bellevue city clerk and treasurer, as well as the mayor of Bellevue, providing

notice of the incident with a statement that a claim for damages would be

forthcoming. The letter stated:

Please be advised that we have been retained to represent Sandra D. Creamer for her claim of injuries resulting from a fall, which occurred at the sidewalk in front of Frame and Hang Studio Gallery, located at 401 Fairfield Avenue in Bellevue, Kentucky on 9/21/2023. This does not mean that a lawsuit has been filed. It is simply notice that a claim for monetary damages is forthcoming for the injuries to our client.[3]

Creamer’s counsel received a receipt confirming that the notice letter had been

received by both the mayor and city clerk and treasurer.

2 Kentucky Revised Statutes. 3 Trial Record at 60, 62.

-2- After failing to resolve her injury claim through any agreement with

the City, Creamer filed a Complaint (and later an Amended Complaint) against the

City and the local business. The City filed a Motion to Dismiss pursuant to CR

12.02(f), arguing that Creamer failed to state a claim upon which relief could be

granted. Specifically, her notice letter was insufficient under KRS 411.110

because it did not supply information concerning the nature of Creamer’s injuries.

The circuit court agreed and dismissed the action against the City.

Later, the circuit court granted judgment on the pleadings in favor of the local

business owner. Creamer did not appeal that later decision, and that local business

is not a party to this appeal.

Creamer filed this timely appeal, challenging the dismissal of her

negligence action against the City. The issue, whether the notice letter was

sufficient to inform the City of the character and circumstances of Creamer’s

injury, has been duly preserved, and all briefs are compliant with the Kentucky

Rules of Appellate Procedure.

STANDARD OF REVIEW

Provisions of the Kentucky Rules of Civil Procedure authorize a court

to dismiss a complaint or any part of it for failure to state a claim for which relief

can be granted. CR 12.02(f). In order for such a dismissal to be granted, it must

appear to a certainty that the claimant would not be entitled to relief under any set

-3- of facts that could be proven in support of the claim. Pari-Mutuel Clerks’ Union of

Ky., Local 541, SEIU, AFL-CIO v. Ky. Jockey Club, 551 S.W.2d 801, 803 (Ky.

1977).

A motion to dismiss for failure to state a claim upon which relief may

be granted presents a question of law. Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010)

(citing Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009)). We may give no

deference to a trial court’s determination upon review. Id. Instead, we must

review the matter de novo. Netherwood v. Fifth Third Bank, Inc., 514 S.W.3d 558,

562–63 (Ky. App. 2017).

ANALYSIS

KRS 411.110 sets forth a prior notice requirement to filing a civil

action against a city for injuries resulting from a defect in the condition of a

sidewalk or other public thoroughfare. The injured party must provide notice to

the mayor, city clerk, or clerk of the board of aldermen. This notice must be

provided within ninety days of the occurrence for which damages are claimed.

The notice must include the following information: (1) the time of and place where

the injury was received, (2) the character and circumstances of the injury, and (3)

a statement as to whether the person injured will claim damages from the city.

Creamer’s notice to the City complied with items (1) and (3). The

dispute concerns whether Creamer’s notice complied with item (2) – notice of the

-4- “character and circumstances of the injury.” The circuit court determined that it

did not. The circuit court was correct.

KRS 411.110 mandates a specific notice that is a strict condition

precedent to filing an action against a city seeking damages for personal injury

arising from an alleged defect in a city street, sidewalk, alley or other public

thoroughfare. Ballinger v. City of Harlan, 170 S.W.2d 912 (Ky. 1943). Kentucky

courts have consistently and uniformly held that a plaintiff must strictly comply

with the statute’s notice requirements. City of Elsmere v. Brown, 180 S.W.2d 86,

87 (Ky. 1944) (“the s[t]atute must be strictly complied with”); City of Louisville v.

Verst, 213 S.W.2d 517, 518 (Ky. 1948) (“The statute . . . is mandatory, and must

be strictly complied with”); City of Louisville v. O’Neill, 440 S.W.2d 265, 266

(Ky. 1969) (“The statute dealing with notices to cities must be strictly complied

with”). Here, Creamer failed to strictly comply with all notice requirements of the

statute.

As seen on the face of the letter, Creamer notified the City that she

was injured. She informed the City of the specific location where her injury

occurred and the date of her injury. And she informed the City that a claim for

monetary damages was forthcoming. The letter containing this information was

received by the City within 90 days of the date of her injury. Arguing substantial

-5- compliance, Creamer believes that this was sufficient to satisfy the notice

requirements of KRS 411.110.

KRS 411.110 requires some description of the injury. Merely stating

that Creamer sustained “an injury” is insufficient. She must give notice to the City

of the “character”4 of the injury to allow the City to investigate and evaluate the

potential liability and damages arising from the accident. The circuit court used

the synonym of nature of the injury when addressing the character of injury

requirement of the statute.

In Verst, the plaintiff provided sufficient notice to the mayor by

stating she was injured due to a defective sidewalk that resulted in a broken hip

and other injuries. Verst, 213 S.W.2d at 518. Here, Creamer’s notice only stated

she had a claim of “injuries.” There is no reference to the part of the body injured,

i.e., no reference to the “character” or nature of the injury. While KRS 411.110

does not require Creamer to explicitly detail her injury, it does require some

description of the injury to satisfy statutory notice requirements.

The circuit court proceedings focused on the character of the injury

requirement. We note that the circumstances requirement also was not satisfied.

4 Character is defined as “a distinguishing attribute or feature[.]” Character, MERRIAM- WEBSTER, https://www.merriam-webster.com/dictionary/character. (last visited May 6, 2026). To hold that simply saying that an injury occurred is sufficient would ignore the word character in the statute.

-6- Verst suggested that just saying an injury occurred because of a “defective

condition of the sidewalk” could be enough notice of the circumstances of the

injury. Verst, 213 S.W.2d at 518. Creamer did not state that there was any defect

causing an injury. In Berry v. City of Louisville, 249 S.W.2d 818 (Ky 1952), the

failure to provide some description of the defect was fatal to the claim. The court

in O’Neill clarified that there must be some description of the hazardous condition

claimed which caused the injury. O’Neill, 440 S.W.2d at 266. Creamer also failed

to comply with this separate requirement.

The statute has more than one recognized purpose. One purpose is to

give a city an opportunity to investigate the scene of an accident and correct any

defective condition, if such exists. But, as Creamer recognizes at page four of her

Appellant’s Brief, another purpose is to enable a city to investigate and evaluate

the case so that, if liability exists, a city might have an opportunity to settle it

without long and expensive litigation, and to give cities an opportunity to protect

funds against unjust and illegal claims. O’Neill, 440 S.W.2d at 266. Such

information would have provided the City here the opportunity to consider the

extent of the injuries and decide whether to attempt settlement of the action or

proceed with potentially costly litigation.5 Public policy encourages prompt

5 When the statute was initially enacted, the claims would have been made more directly against the city treasury. We should not ignore the modern reality of city’s having purchased liability

-7- resolution of claims, and pre-litigation decisions may be based on whether the

nature of alleged injuries fall outside the normal scope of a slip and fall accident.

Creamer argues that her injuries were sustained only a few days

before the notice was sent and that medical professionals were still conducting

evaluations and treatment to determine the extent of the damage, making it

impossible to provide a comprehensive assessment of her condition at the time the

notice was sent. Yet the statute allows 90 days to provide notice of injury to the

City. The wording of the statute and this time limit make it clear that a

comprehensive medical assessment is not required nor expected – just a basic

description of what was hurt.

If Creamer had wanted to provide a more specific medical description,

she had time to avail herself, and the City, of at least some description of the

character of her injury prior to the deadline for sending the notice letter. She did

not have to have a comprehensive medical report written for litigation purposes.

An initial assessment that she hurt her foot, leg, or hip, for example, could have

been stated.

Creamer also argues that this Court should adopt the approach

followed by courts elsewhere that notice statutes such as KRS 411.110 should be

insurance to protect against unplanned expenditures of city funds and the requirements of such contracts for sufficient notice under the law for coverage.

-8- interpreted and decided based on the basic purpose underlying the notice statute

rather than on strict compliance. This argument ignores that the statute has more

than one purpose as we have explained.

The argument relies heavily on the dissenting opinion in our

unpublished decision in Sturgill v. City of Owenton, No. 2015-CA-000586-MR,

2017 WL 4082894 (Ky. App. Sep. 15, 2017). The argument insists that the

sufficiency of the notice under KRS 411.110 should be based only on the timing it

was given as this is the main purpose of the statute, rather than on whether every

single detail expressed by the statute is included.

A dissent in an unpublished case has no precedential value, and as the

majority noted in Sturgill, at *2:

Because the legislature does not have to allow an injured person a remedy against a city, it is entitled to limit that remedy by requiring reasonable notice of the claim; it has so provided in KRS 411.110. City of Irvine v. Cox, 296 Ky. 680, 682, 178 S.W.2d 199, 200 (1944). Therefore, courts are bound by the express terms of the statute regarding permission to sue a city and have no authority to provide any exceptions to strict compliance with the statutory language. Baldridge, 613 S.W.2d at 431; Wellman v. City of Owensboro, 282 S.W.2d 628, 630 (Ky. 1955).

We are not free to ignore eighty years of precedent from Kentucky’s

highest court, even if we felt that substantial compliance should suffice, and, for

the reasons we have stated, we do not agree with the analysis suggesting that there

-9- should be this delineation between what in the statute calls for strict compliance

and what does not. While the legislature can eliminate the words character and

circumstances from the statute if it so chooses, judges may not.

While Creamer’s notice provided some statutorily mandated

information, it did not provide the City with information as to the “character and

circumstances of the injury” as strictly required by KRS 411.110. This was an

essential prerequisite to the filing of a lawsuit against the City. Creamer failed to

state a claim upon which relief could be granted.

CONCLUSION

Finding no error in the Order dismissing Appellant’s Amended

Complaint for failure to state a claim upon which relief could be granted, the

Campbell Circuit Court is AFFIRMED.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Dennis C. Mahoney Jeffrey C. Mando Joshua R. Kemme Shelbi L. Shultz Cincinnati, Ohio Covington, Kentucky

-10-