concurring in result.
I concur in the result reached by the majority, but not its view of the consequences thereof.
*1383Our prior decisions require that I concur in finding the notice given on May 18, 1983 was inadequate to comply with the Tort Claims Act.
I disagree with the majority's analysis of the effect that had upon IC 34-4-16.5-8. That section of the statute provides:
"If a person is incompetent to give notice as required in section 6 [84-4-16.-5-6] or 7 [84-4-16.5-7] of this chapter, his claim is barred unless notice is filed within one hundred eighty [180] days after the incompetency is removed."
I confess that if the application of that section were a question of first impression, I might be inclined to the view that the section was irrelevant since in Indiana wrongful death actions are to be brought by a personal representative, although they inure to the benefit of the decedent's minor children. See IC 34-1-1-2; G.M.C. v. Arnett (1981), Ind.App., 418 N.E.2d 546.
Such, however, is not the case. In Scott Co. v. Stamper (1981), Ind.App., 425 N.E.2d 264, transfer denied, the First District of this court determined that IC 34-4-16.5-8 would preserve the rights of minor children in a wrongful death action involving application of the Tort Claims Act.
There is no qualification set forth in the statute limiting its application to the period of incompetency or until some kind of notice is given or suit commenced. Because of their ages the minor children of James Gatchell are not time-barred from having instituted a claim against the City of South Bend. Scott v. Stamper, supra.
The question then concerns the effect of the instant attempt. The notice given was insufficient and the personal representative elected to stand on it. While the complaint should most probably have been dismissed for failure to state a claim upon which relief could be granted, consideration of the admissions, ete. would require it to be considered as a summary judgment, even in the absence of a specific motion. Indiana Rules of Procedure, Trial Rule 12(B).
Thus, summary judgment was properly entered upon the specific claim at suit be-ecause the notice upon which it was premised was insufficient as a matter of law. That is all the trial court decided and what we affirm today.
STATON, Presiding Judge, dissenting. I dissent. Although the timely, written notice to the City of South Bend does not give a meticulous rendition of the cireum-stances which brought about the loss, it does give the City of South Bend adequate notice, and it does conform with the intent and purpose of the statute. James Gat-chell was shot and killed by Sgt. Sam Young, a South Bend Police Officer. Such events are given considerable coverage by the local media and precipitate an internal investigation by the police department. Since the notice is made by Amy and Angela Gatchell for the wrongful death of their father, the loss requirement of the statute is satisfied. To require more would be to demand all the evidence to be presented at trial. A requirement not intended by the statute.