Shearer v. Perry Community School District

236 N.W.2d 688, 1975 Iowa Sup. LEXIS 1064

• Court: Supreme Court of Iowa
• Decided: December 17, 1975
• Docket: 2-56764
• Status: Published

Opinions

REES, Justice.

Plaintiffs appeal from the order of the trial court sustaining motion of defendant Perry Community School District for summary judgment and dismissing plaintiffs’ petition as against the school district. We affirm.

On March 25, 1971, Kenneth L. Shearer, Jr., then age 14 and a student at Perry Community High School, was engaged in an exercise known as “curling” which involved lifting a weight attached to a bar with a cable, on a device described as a Universal Gladiator “70”, the property of the school district. While the Shearer youth was involved in such exercise, a portion of the machine became disengaged from the rest of the device and struck him in the mouth and teeth, resulting in the loss of his two front teeth and necessitating considerable dental treatment.

At the time of the injury, the physical education instructor was in the room with young Shearer, and the injury was immediately reported to the assistant principal and the principal of the defendant school district. The following day Shearer’s mother reported the injury to the superintendent of the school district.

On March 23, 1973, Kenneth Shearer, Jr., by and through his father and next friend, Kenneth L. Shearer, filed a petition against the school district and the distributor and manufacturer of the exercise machine for damages in the amount of $25,000 arising out of the injury. Kenneth L. Shearer, Sr., also prayed for damages against the school district in the amount of $5000 for loss of his son’s services and other damages arising out of the injury. The petition of the plaintiffs was based upon theories of negligence, breach of implied warranty and the doctrine of strict liability. The manufacturer and distributor of the machine both answered and are not parties to this appeal.

Defendant school district filed answer denying liability and later filed its motion for summary judgment alleging neither plaintiff had complied with the notice requirements of § 613A.5, The Code, 1971, as amended. In their resistance to the motion for summary judgment, plaintiffs asserted the school district, through its agents and employees, had actual notice of the injury, that the time for bringing the action was extended by § 614.8, The Code, 1971, and further asserted that § 613A.5, The Code, is unconstitutional.

In sustaining defendant’s motion for summary judgment and dismissing plaintiffs’ petition as against the school district, trial court held actual notice by the teacher and other agents of the school district and verbal notice to the superintendent did not constitute compliance with § 613A.5; that § 614.8 had no application to the right of action and the limitation of actions created by chapter 613A; and further that § 613A.5 was not unconstitutional. This appeal followed the entry of such order.

Plaintiffs present the following issues for review which they contend necessitate a reversal of the order of the trial court:

1. Section 613A.5, The Code, 1971, violates the guarantees of due process of law of the Constitution of the United States and the Constitution of the State of Iowa.

2. Section 613A.5, The Code, 1971, violates the Equal Protection Clause of the Constitution of the United States.

3. The actual knowledge of the injury to plaintiff on the part of teachers or other agents of the school district and the verbal notice of the injury to the superintendent of the school district constituted substantial compliance with the notice requirements of § 613A.5, The Code, 1971.

4. Section 614.8, The Code, 1971, extended in the case of the minor plaintiff the time for making a claim for personal injuries against the school district to a period ending one year after the termination of his minority.

I. In their first issue presented for review, plaintiffs assert § 613A.5, The Code, 1971, is repugnant to the guarantees of due process of law set forth in Amendment 14 of the United States Constitution, and in the Constitution of the State of Iowa.

Chapter 613A, The Code, 1971, provided for the tort liability of governmental subdivisions and for methods of enforcing a right of action arising thereunder. Section 613A.5 provided periods of limitation for claimants asserting a right to recover under the chapter. Said section is as follows:

“613A.5 Limitation of actions. Every person who claims damages from any municipality for or on account of any wrongful death, loss or injury within the scope of section 613A.2 shall commence an action therefor within three months, unless said person shall cause to be presented to the governing body of the municipality within sixty days after the alleged wrongful death, loss or injury a written notice stating the time, place, and circumstances thereof and the amount of compensation or other relief demanded. Failure to state the amount of compensation or other relief demanded shall not invalidate the notice; providing, the claimant shall furnish full information regarding the nature and extent of the injuries and damages within fifteen days after demand by the municipality. No action therefor shall be maintained unless such notice has been given and unless the action is commenced within two years after such notice. The time for giving such notice shall include a reasonable length of time, not to exceed ninety days, during which the person injured is incapacitated by his injury from giving such notice.”

Plaintiffs argue the above statute is constitutionally offensive on its face and as applied to them in that it arbitrarily and capriciously infringes upon a vested property right and places the burden on an injured minor to protect such right regardless of his age or the nature and extent of his injury.

Plaintiffs are laboring under a heavy burden. With exceptions not here involved, statutes regularly enacted by legislatures are afforded a strong presumption of constitutionality and all reasonable in-tendments are indulged in favor of the validity of the legislation attacked. Presbytery of Southeast Iowa v. Harris, 226 N.W.2d 232, 237 (Iowa 1975); Keasling v. Thompson, 217 N.W.2d 687, 689 (Iowa 1974) and citations. Where the constitutionality of a statute is doubtful or fairly debatable, we will not set it aside. Keasling v. Thompson, supra.

Plaintiffs invoke the due process clauses of both our state’s constitution and Amendment 14 to the United States Constitution. The provisions of both are similarly phrased. Where constitutional provisions contain similar guarantees, they are usually deemed to be identical in scope, import, and purpose. Davenport Water Co. v. Iowa State Commerce Commission, 190 N.W.2d 583, 593 (Iowa 1971).

We consider first plaintiffs’ claim § 613A.5 is constitutionally offensive on its face. Important in our consideration is the fact chapter 613A created a right of action unknown at our common law. In Sprung v. Rasmussen, 180 N.W.2d 430, 433 (Iowa 1970), we said of this chapter, and particularly of § 613A.5:

“The statute creates a new liability and provides for methods of enforcing the same, and by its terms fixes the time within which action for recovery may be commenced. It being a statute of creation, the commencement of the action within the time the statute fixes is an indispensible condition of the liability and of the action permitted. The time element is an inherent element of the right so created, and the limitation of the remedy is likewise a limitation of the right." (emphasis supplied)

At the same page of Sprung, supra, we noted that under these statutes of creation, sometimes referred to as “conditions precedent to suit” statutes, non-compliance affects the right of action as well as the remedy. We also commented upon the basis for disparate treatment of victims of governmental and private torts, saying:

“Where, as here, the legislature has created a new right of action, it made a legislative judgment that the cause should be brought within a specified time. This difference doubtlessly arises from the fact the statute we are here interpreting is in derogation of sovereign immunity and that the legislature might, and did, properly restrict and limit the application of the statute.”

In the light of our interpretation of § 613A.5 we are unable to agree with plaintiffs that said section arbitrarily and capriciously infringes upon or cuts off vested rights in violation of constitutional guarantees. Instead, we conclude the right of action provided by chapter 613A is co-extensive with, and no broader than, the notice requirement of § 613A.5. In other words, it might be said compliance with the notice requirement is a condition precedent to the maintenance of an action for compensation for torts committed by governmental subdivisions. See 1 Am.Jur.2d Actions § 81, p. 610.

We might find some difficulty in upholding § 613A.5 against a constitutional challenge if it were shown the condition attached to the right of action was so unreasonable as to render compliance almost impossible or to give an injured person, in essence, no right of recovery. Yet we are mindful of the general rule stated in 16 C.J.S. Constitutional Law § 266a, p. 1260:

“Where the time within which a right of action may be enforced is limited by the legislative enactment which creates the right, the legislature is the exclusive judge of the reasonableness of the limitation and it is not the province of the courts to inquire concerning it.”

Courts have attributed to legislatures a number of intentions in the enactment of notice statutes such as that with which we are here concerned. Most of such legislative intentions have been held to be bottomed on the belief that where a governmental division is involved the public has an interest it does not have as to claims against private persons in seeing prompt and thorough investigation of claims is made. Lunday v. Vogelmann, 213 N.W.2d 904, 907 (Iowa 1973). Such notice requirements protect the public treasury from stale claims, permit prompt settlement of meritorious claims, avoid unnecessary litigation, facilitate planning of municipal budgets, and ensure that notice reaches the public officers with responsibility to deal with them, enabling such officers to remedy defects in municipal property before other persons are injured. See Lunday v. Vogelmann, supra at 908-909, and citations.

In the light of the enumerated permissible purposes for the enactment of § 613A.5, we are unwilling to say said statute is arbitrary and capricious on its face. Plaintiffs have not carried their burden to prove the statute unconstitutional in this regard.

Plaintiffs place heavy reliance on Grubaugh v. City of St. Johns, 384 Mich. 165, 180 N.W.2d 778. In Grubaugh the Michigan court held a statute similar to our § 613A.5 offensive to due process as applied to the particular plaintiff. We note the Michigan court has followed the Grubaugh rationale in several cases, notably Hussey v. City of Muskegon Heights, 36 Mich.App. 264, 193 N.W.2d 421, and Corona v. County of Lenawee, 36 Mich.App. 579, 194 N.W.2d 46. Aside from the fact the Grubaugh decision did not invalidate the Michigan statute on its face, we note it was also premised on the court’s conclusion the legislature, by abrogating sovereign tort immunity, intended that victims of public and private torts be placed on equal footing. We have no basis for following that reasoning here. See Sprung v. Rasmussen, supra.

Plaintiffs ask that we declare § 613A.5 unconstitutional in its application to the claim of Kenneth Shearer, Jr. Unfortunately, plaintiffs’ brief does not provide us with reasons why the statute has operated unreasonably with respect to the peculiar circumstances of the Shearers’ situation. Rather, plaintiffs rely on the fact young Shearer was 14 years old when his injuries occurred, and upon general statements that the statute applied to infants is unjust, unfair, illogical, arbitrary, capricious, offensive and wrong. They further allude to the burden the notice requirement places upon an injured youth no matter how serious his injuries or his age, but do not explain how Shearer’s age at the time, or the claimed seriousness of his own injuries, made it unreasonable to expect from him compliance with the statute in this particular instance.

The adjudication of the constitutionality of statutes is too delicate a task to be based upon generalities or conjecture. We must hold plaintiffs have not met the burden of demonstrating the statute violative of due process as applied to the minor.

II. We reject plaintiffs’ claim § 613A.5, The Code, violates the Equal Protection Clause of Amendment 14 to the United States Constitution. According to plaintiffs, the notice requirement of that section arbitrarily divides the natural class of tort-feasors and tort victims into unequally treated subclasses, namely, private tort-feasors and their victims and governmental tort-feasors and their victims.

We rejected an identical claim in Lunday v. Vogelmann, supra, and there held we were unable to say § 613A.5, The Code, was patently arbitrary and bore no rational relationship to a legitimate governmental interest. We believe that reasoning to be sound and dispositive of the identical issue in the instant case.

III. In the third issue stated for review, plaintiffs contend actual knowledge of the injury on the part of the physical education instructor, the principal and the vice principal of the school, together with the verbal notification to the superintendent by Shearer’s mother on the day following the accident, constituted substantial compliance with the notice requirements of § 613A.5. We are unable to agree with plaintiffs’ contention in this regard.

In American States Insurance Co. v. City of Dubuque, 186 N.W.2d 601, 604 (Iowa 1971), we held the notice required by § 613A.5 is essential to the maintenance of a suit under chapter 613A, and its minimal content specifically a requirement of the statute. We reiterated this view in Goodwin v. City of Bloomfield, 203 N.W.2d 582, 586 (Iowa 1973), wherein we said:

“We now hold section 613A.5 prescribes the minimal essential contents of a notice of claim required by this section and substantial compliance therewith is essential to the maintenance of suit against a municipality for tort * ⅜ *.”

The knowledge on the part of the school officials and employees certainly cannot be construed as substantial compliance with the notice requirements of the statute. We are not informed as to the substance of the verbal notification to the superintendent by the student’s mother, but in any event we are not prepared to say such verbal notification constituted substantial compliance with a statute clearly and specifically requiring written notice.

IV. Finally, plaintiffs contend § 614.8, The Code, 1971, extended, to a minor making claim for personal injuries against a school district, the time for the assertion of such claim through a period ending one year after the termination of his minority.

This issue was before us in Vermeer v. Sneller, 190 N.W.2d 389 (Iowa 1971), but a majority of this court did not believe its treatment necessary to the disposition of that appeal. The question is, therefore, one of first impression in this case.

Chapter 614 of the 1971 Code was entitled, “Limitations of Actions,” and § 614.8 thereof provided as follows:

“Minors and mentally ill persons. The times limited for actions herein, except those brought for penalties and forfeitures, shall be extended in favor of minors and mentally ill persons, so that they shall have one year from and after the termination of such disability within which to commence said action.”

Plaintiffs contend we should interpret § 614.8 as applying to actions brought under the provisions of chapter 613A. We cannot agree.

It is clearly within the power of a legislature to put adults and minors on an equal basis with regard to statutes of limitation. See Lane v. Travelers Ins. Co., 230 Iowa 973, 977, 299 N.W. 553, 554. Where the legislature creates a new cause of action unavailable at common law, or in derogation of common law, it is not required to exempt minors from limitations upon such cause of action.

Section 614.8 does, as plaintiffs point out, provide that minority of a claimant tolls a statute of limitations, but by its terms it is applicable only to actions referred to in chapter 614, The Code, i. e., “actions herein.” The benefit of § 614.8 is limited by its own language.

We must conclude the conditions and times fixed by § 613A.5, The Code, exclusively control rights and remedies available under chapter 613A. Section 613A.5 provides that disability shall extend the period of time in which an incapacitated or injured person shall present the required notice of claim to a municipality. Sprung v. Rasmussen, supra. There is nothing in § 614.8 which provides for a tolling of the notice of claim period because of the minority of a claimant seeking to maintain an action under chapter 613A, and we must therefore hold the minority of plaintiff Kenneth L. Shearer, Jr., did not toll the operation of the statute.

In conclusion, we hold plaintiffs have not shown § 613A.5, The Code, to be constitutionally infirm or offensive. Neither have they established compliance with the notice requirements of the section. We further hold § 614.8, The Code, did not act to toll the notice period. Trial court was correct in sustaining defendant’s motion for summary judgment and dismissing plaintiffs’ petition, and must be affirmed.

Affirmed.

MOORE, C. J., and RAWLINGS, Le-GRAND and UHLENHOPP, JJ., concur. REYNOLDSON, J., dissents. MASON, HARRIS and McCORMICK, JJ., join Division II of the dissent.