(specially concurring).
I specially concur:
Section 41^4-16(A) and (B), N.M.S.A.1978 reads in pertinent part:
A. Every person who claims damages from * * * any local body under the Tort Claims Act [41-4-1 to 41-4-25 N.M.S.A. 1978] shall cause to be presented to the * * * mayor of the municipality for claims against the municipality * * * within ninety days after an occurrence giving rise to a claim for which immunity has been waived under the Tort Claims Act, a written notice stating the time, place and circumstances of the loss or injury.
B. No suit or action for which immunity has been waived under the Tort Claims Act shall be maintained and no court shall have jurisdiction to consider any suit or action against * * * any local public body unless notice has been given as required by this section, or unless the governmental entity had actual notice of the occurrence. * * * [Emphasis added.]
This is a death-dealing enactment for members of the public who are unaware of its existence.
Although there is a conflict in authority, I favor those jurisdictions which hold this statute unconstitutional and void. DeHusson v. City of Anchorage, 583 P.2d 791 (Alaska 1978); O’Neil v. City of Parkersburg, 237 S.E.2d 504 (W.Va.1977); Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845 (1975); King v. Baskin, 89 Nev. 290, 511 P.2d 115 (1973); Hobbs v. Michigan St. Highway Dept., 58 Mich.App. 189, 227 N.W.2d 286 (1975); Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 (1973); Reich v. State Highway Department, 386 Mich. 617, 194 N.W.2d 700 (1972); Batchelder v. Haxby, 167 Ind.App. 82, 337 N.E.2d 887 (1975), Staton, J., dissenting; Sears v. Southworth, 563 P.2d 192 (Utah 1977), Maughan, J., dissenting. Annot., Modern Status Of The Law As To Validity Of Statute Or Ordinances Requiring Notice Of Tort Claim Against Local Governmental Entity, 59 A.L.R.3d 93, 111 (1974).
The one year statute of limitations, independent of the Tort Claims Act, for actions against municipalities has been held constitutional. Espanola Housing Authority v. Atencio, 90 N.M. 787, 568 P.2d 1233 (1977), reversing Court of Appeals, 90 N.M. 799, 568 P.2d 1245 (Ct.App.1977). Some states are confused about the difference between a statutory period of limitation and a presentment of written notice under the Tort Claims Act. Nevertheless, § 41-4-16(A) and (B) “is in the nature of a statute of limitations to protect governmental entities from stale or fraudulent claims and to give the governmental defendant an opportunity to investigate the incident and to attempt to settle the claim short of litigation. [citation omitted.] The formal notice requirement, of course, has an exception: no formal notice is required where the defendant has ‘actual notice’. This ‘actual notice’ exception, therefore, is in the nature of a defense in avoidance of limitation.” Bell v. Dallas-Fort Worth Regional Airport Bd., 427 F.Supp. 927, 929 (D.C. Texas 1977). Atencio may apply to the instant case.
When we sit in judgment on the validity of a notice of claim statute enacted for the protection of a governmental unit, we must not overlook the fact that people compose that unit, people who are injured and seek relief but are unaware of the existence of the statute. Some courts which favor the denial of relief rely on the old sovereign immunity doctrine which they created as the law of the land. Courts like our Supreme Court recognized the burden of the old and decrepit theory and swept it under the rug. Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975).
Some courts rely on the public policy established by the legislature. This public policy I respect. But the governmental unit, not the people who live therein, influence the use of a word, a phrase or a sentence in the enactment of a statute which may be adverse to the fundamental rights of its people. As a result, we try to balance the protection of the governmental unit and the fundamental rights of the people. We may hold the limitation period constitutional for the protection of the governmental unit. We must erase the notice provision for the benefit of the people.
In the alternative, we must give § 41-4-16(A) and (B) an interpretive approach favorable to the people. The notice provision is not effective if “the governmental unit had actual notice of the occurrence.” An “occurrence” is much more broad than “the time, place and circumstances of the loss or injury.” For definitions, see 67 C.J.S. occur p. 198 (1978); 29 Words and Phrases p. 324 et seq. (1972). We may say that an “occurrence” is an event, incident or happening.
If the City of Clovis had actual notice that a vehicular accident occurred between plaintiff and Mark Boney, a city police officer, the lack of notice to the mayor is irrelevant. An official police report was made by another police officer and a report made to the city police department. The City knew of the damage to the vehicle operated by Boney and the need of restoring it to operation. Another police officer was riding with Boney and knew of the accident. The City’s insurance carrier was notified of the accident by some member of the city personnel.
City of Denton v. Mathes, 528 S.W.2d 625 (Tex.Civ.App.1975) held that in a personal injury action in which a third-party claim for indemnity had been filed against the City under the Tort Claims Act, the trial court did not err in admitting portions of a police report on the accident for purposes of showing the City’s actual notice of the accident. Notice to police officers is “actual” or “constructive” notice to the City. Randolph v. City of Chicago, 315 Ill.App. 85, 42 N.E.2d 143 (1942).
The City places the police department in charge of accidents. Police are present at the scene and have actual notice and knowledge of the event. We cannot allow the City to hide behind the lack of notice to the mayor to escape liability. To show “actual notice” to a mayor or governmental agency, it is unnecessary to show that they actually knew the fact or facts sought to be charged to them by positive direct testimony. It is sufficient to show by circumstances that they knew the facts or should have known them, if proper inquiry were made having knowledge of facts putting them on inquiry. They may not purposely remain ignorant. West v. Jennings, 119 S.W.2d 685 (Tex.Civ. App.1938).
The City of Clovis had “actual notice.”