Susan F. McCall v. City of Washington (mem. dec.)

MEMORANDUM DECISION
Jan 28 2016, 8:33 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Matthew J. McGovern Liberty L. Roberts
Anderson, Indiana Church Church Hittle & Antrim
Fishers, Indiana
Daniel J. Tuley
Tuley Law Office
Evansville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Susan F. McCall, January 28, 2016

Appellant-Plaintiff, Court of Appeals Case No.
82A01-1507-CT-765
v. Appeal from the Vanderburgh
Circuit Court.
City of Washington, The Honorable David D. Kiely,
Judge.
Appellee-Defendant. Cause No. 82C01-1411-CT-5309

Friedlander, Senior Judge

[1] Susan McCall appeals the trial court’s grant of the City of Washington’s motion

for summary judgment. Concluding that summary judgment was proper, we

affirm.

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[2] Susan presents two issues, which we consolidate and restate as: whether the

trial court erred by granting summary judgment for the City of Washington.

[3] On January 15, 2013, Susan was attending an event being held at Our Lady of

Hope Catholic Church in Washington, Indiana. On her way to the church,

Susan tripped and fell on the sidewalk adjacent to the church’s property. As a

result of her fall, Susan suffered injuries that required hospitalization. On

January 16, 2013, Scott McCall, a relative of Susan’s, spoke with a

representative of the church who informed him that the church was not

responsible for the upkeep of the sidewalks and that it is the city’s responsibility

to repair and maintain the sidewalks. Scott then went to the Mayor’s office

where he explained that Susan had fallen on a broken sidewalk adjacent to the

church the previous day, had been injured, and was hospitalized. Scott was

informed by the Mayor that the church, not the city, was responsible for the

upkeep of the sidewalks where Susan fell. The Mayor told Scott that it was the

church’s responsibility to pay any settlement as a result of Susan’s fall, and

Scott was provided with a copy of the city ordinance concerning sidewalk

repair. Scott then returned to the church where he was informed that the

Mayor had contacted them. A representative of the church also told Scott that

the church would pay Susan’s medical bills. Subsequently, Susan filed suit

against the Catholic Diocese of Evansville, the church Bishop, and the City of

Washington. The City filed a motion to dismiss, and Susan filed a response.

Following a hearing on the matter, the trial court granted the City’s motion to

dismiss, and this appeal ensued.

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[4] The City filed a motion to dismiss Susan’s claim pursuant to Indiana Trial Rule

12(B)(6) based upon its contention that she had failed to comply with the notice

provision of the Indiana Tort Claim Act (ITCA). In her response, Susan relied

on Scott’s affidavit as well as other materials, thus converting the City’s motion

to one of summary judgment. See Ind. Trial Rule 12(B). Accordingly, on

appeal we will treat the trial court’s dismissal of Susan’s complaint as a

summary judgment for the City. See Carmeuse Lime & Stone v. Illini State

Trucking, Inc., 986 N.E.2d 271 (Ind. Ct. App. 2013) (treating motion to dismiss

as motion for summary judgment where trial court considered evidence outside

pleading in deciding motion to dismiss).

[5] On appeal from a grant or denial of summary judgment, our standard of review

is identical to that of the trial court: whether there exists a genuine issue of

material fact and whether the moving party is entitled to judgment as a matter

of law. Winchell v. Guy, 857 N.E.2d 1024 (Ind. Ct. App. 2006); see also Ind.

Trial Rule 56(C). Appellate review of a summary judgment motion is limited

to those materials designated to the trial court. Pond v. McNellis, 845 N.E.2d

1043 (Ind. Ct. App. 2006), trans. denied. All facts and reasonable inferences

drawn therefrom are construed in favor of the non-movant. Id. Further, we

carefully review a grant of summary judgment to ensure that a party was not

improperly denied its day in court. Id. The party appealing the judgment

carries the burden of persuading the appellate court that the trial court’s

decision was erroneous. Bradshaw v. Chandler, 916 N.E.2d 163 (Ind. 2009).

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[6] Compliance with the ITCA is a question of law properly left to the court.

Brown v. Alexander, 876 N.E.2d 376 (Ind. Ct. App. 2007), trans. denied. A

judgment based on non-compliance with the ITCA is subject to review as a

negative judgment, and we will reverse the trial court’s determination only if it

is contrary to law. Id.

[7] The ITCA provides that a claim against a political subdivision is barred unless

notice of the claim is filed within 180 days after the loss occurs. Ind. Code § 34-

13-3-8 (1998). The notice required by the ITCA consists of a short and plain

statement of the facts on which the claim is based, including “the circumstances

which brought about the loss, the extent of the loss, the time and place the loss

occurred, the names of all persons involved if known, the amount of the

damages sought, and the residence of the person making the claim at the time

of the loss and at the time of filing the notice.” Ind. Code § 34-13-3-10 (1998).

Further, the notice of claim is required to be in writing and delivered in person

or by registered or certified mail. Ind. Code § 34-13-3-12 (1998). Not all

failures to comply with the requirements of these statutes, however, have

proven fatal to a claim; in certain cases non-compliance has been excused based

on theories of substantial compliance, waiver, and estoppel. City of Tipton v.

Baxter, 593 N.E.2d 1280 (Ind. Ct. App. 1992).

[8] Susan concedes that she did not file a written notice of her claim as required by

Indiana Code section 34-13-3-12 but contends that she substantially complied

with the notice requirements of the ITCA such that the trial court’s grant of

summary judgment for the City is in error. The City responds that Susan did

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 not substantially comply with the ITCA because she did not affirmatively state

her intent to pursue a claim against it.

[9] The purpose of the notice requirement is to inform the governmental entity with

reasonable certainty of the incident and surrounding circumstances so that it

may investigate, determine its possible liability, and prepare a defense to the

claim. Fowler v. Brewer, 773 N.E.2d 858 (Ind. Ct. App. 2002), trans. denied. In

order to constitute substantial compliance, the notice must not only inform the

governmental entity of the facts and circumstances of the alleged injury but

must also advise of the intent of the injured party to assert a tort claim. Id. The

question of substantial compliance with the dictates of the ITCA, although fact

sensitive, is a question of law for the court. Ammerman v. State, 627 N.E.2d 836

(Ind. Ct. App. 1994).

[10] Here, the designated evidence shows that the day after Susan’s fall, Scott

informed the Mayor of the incident, Susan’s injuries, and her hospitalization.

As Susan concedes, she did not file a written notice of her claim against the

City; instead, she relies on Scott’s conversation with the Mayor to serve as her

notice under the ITCA. Although Scott verbally informed the City in a timely

fashion of the circumstances of Susan’s fall, there is no evidence that the City

was given any notice, written or otherwise, of Susan’s intent to take legal

action. This is not sufficient to fulfill the notice requirement of the ITCA. See

Rudnick v. N. Ind. Commuter Transp. Dist., 892 N.E.2d 204 (Ind. Ct. App. 2008)

(holding that although governmental entity knew description of incident, time

and place of injury, names of persons involved, and claimant’s address, medical

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 expenses and time away from work, claimant did not substantially comply with

notice requirements of ITCA because governmental entity was not made aware

of claimant’s intent to sue), trans. denied; Brown, 876 N.E.2d 376 (summary

judgment for governmental entity affirmed because, although governmental

entity had knowledge of claimant’s injury, an opportunity to investigate, and

was at fault for accident, claimant failed to give notice of her claim); Orndorff v.

New Albany Hous. Auth., 843 N.E.2d 592 (Ind. Ct. App. 2006) (holding no

substantial compliance with ITCA where governmental entity knew of incident,

helped police locate witnesses, and discussed possibility of lawsuit in days

following incident but received no notice of claimant’s intent to pursue legal

action within 180 days of incident), trans. denied; and McConnell v. Porter Mem’l

Hosp., 698 N.E.2d 865 (Ind. Ct. App. 1998) (affirming summary judgment for

hospital where hospital had incident report containing date and time of

incident, description of incident, witnesses, and name of injured party, but it

was not advised of injured party’s intent to assert tort claim), trans. denied.

[11] In the alternative, Susan argues that the City was estopped from asserting her

non-compliance with the notice provisions of the ITCA because the Mayor

concealed the City’s liability. The theory of estoppel focuses on representations

made by the governmental entity or its agents to the claimant, which induce the

claimant reasonably to believe that formal notice is unnecessary. Brown, 876

N.E.2d 376. This Court has summarized the requirements for applying the

estoppel doctrine in the context of the ITCA:

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 [W]hen responsible agents or officials of a city have actual
knowledge of the occurrence which causes injury and they
pursue an investigation which reveals substantially the same
information that the required notice would provide, and they
thereafter follow a course of action which would reasonably lead
a claimant to conclude that a formal notice would be
unnecessary, . . . [and] [i]f the claimant, as a result of such
municipal conduct, in good faith fails to act, or acts thereon to
his disadvantage, then an estoppel against the requirement of the
notice may be said to arise.
Coghill v. Badger, 418 N.E.2d 1201, 1209 (Ind. Ct. App. 1981). In summary, a

mere investigation by agents or officials of a governmental entity, by itself, will

not necessarily produce an estoppel; rather, the estoppel occurs when there is an

investigation followed by action in relation to the claimant that would lead a

reasonable person to conclude that further notice is unnecessary. Id.

[12] Applying these principles to the designated evidence, we conclude the City was

informed of the time, place, cause, and nature of the accident, as well as the

general nature of Susan’s injuries. The designated evidence does not

demonstrate, however, that the City investigated the facts at all, much less to

determine its liability or to prepare a defense, which is the purpose of the notice

requirement. See Fowler, 773 N.E.2d 858 (stating that purpose of notice

requirement is to inform governmental entity of incident so it may investigate,

determine liability, and prepare defense). Additionally, the designated evidence

does not establish that after an investigation, the City took action that would

reasonably lead Susan to conclude that formal notice was unnecessary. At

most, the designated evidence shows that Scott informed the Mayor of the

circumstances of Susan’s fall, the Mayor indicated that repair and maintenance
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 of the sidewalk upon which Susan fell is the responsibility of the church, he

provided Scott with a copy of a city ordinance stating as much, and he stated

his belief that the City was not liable. Thus, without evidence to show that the

purposes underlying the notice requirements have been satisfied (i.e.,

investigation of all the facts to determine liability and prepare a defense) and

that the City followed a course of action which would reasonably lead Susan to

conclude that formal notice is unnecessary, the estoppel doctrine is not

applicable. See Delaware Cnty. v. Powell, 272 Ind. 82, 393 N.E.2d 190 (1979)

(stating that when acts and conduct of defendant or his agents have established

that purposes of notice statute have been satisfied, these acts and conduct could

create estoppel); see also Coghill, 418 N.E.2d 1201 (stating that investigation

followed by course of action which would reasonably lead claimant to conclude

that formal notice is unnecessary may create estoppel).

[13] Susan did not substantially comply with the notice provisions of the ITCA, and

the evidence did not show that the theory of estoppel was applicable in this

case. Summary judgment for the City was appropriate.

[14] Judgment affirmed.

[15] Bailey, J., and Crone, J., concur.

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