Batchelder v. Haxby

Dissenting Opinion

Staton, P.J.

— Batchelder asserts that the notice provision of the tort claims statute, IC 1971, 18-2-2-1, Ind. Ann. Stat. §48-8001 (Burns Repl. 1983) (repealed 1974), is an unconstitutional denial of equal protection.' I agree, and I respectfully dissent from the majority opinion.

The notice requirement creates classes in two ways. First, the natural class of tortfeasors is split into governmental tortfeasors entitled to a special notice of claims within sixty (60) days of their occurrence, and private tortfeasors who are not entitled to special notice prior to suit. Secondly, the natural class of tort victims is split into victims of governmental negligence who must give the required notice or be subject to a defense against their claims, and victims of private negligence who need not give notice except as required by the two-year tort statute of limitations. These classes create and unequal burden of notice and trigger the equal protection analysis. See Sturrup v. Mahan (1974), 261 Ind. 463, 305 N.E.2d 877.

Although the equal protection clause of the Fourteenth Amendment to the United States Constitution, and Art. 1, section 23, in the Indiana Constitution, mandate that all persons similarly situated be treated alike, these provisions do not prevent reasonable classifications created by the State. Under the traditional, rational basis test,1 the question is whether the statutory classification is reasonably related to the achievement of a legitimate state purpose.

Repeatedly, the stated purpose of the notice provision in section 48-8001 has been to inform the governmental entity *87so that it may investigate the claim, prepare its defense, or settle the claim. Aaron v. City of Tipton (1941), 218 Ind. 227, 32 N.E.2d 88; City of Logansport v. Gammill (1957), 128 Ind. App. 53, 145 N.E.2d 908; Brown v. City of South Bend (1971), 148 Ind. App. 436, 267 N.E.2d 400. In light of this purpose, I can perceive of no rational basis for the distinction between similarly situated tortfeasors and victims on the basis of the tortfeasor’s status as a governmental or a private entity. All tortfeasors have a similar interest in the prompt investigation of claims, in settlement, and in the preparation of a defense. All victims have a similar interest in seeking redress for their injuries. The special treatment afforded governmental tortfeasors, and the special burden placed upon victims of governmental negligence, are arbitrary and without rational basis and, therefore, violative of the equal protection guarantee.

Note. — Reported at 337 N.E.2d 887.

. There is no contention that the statutory classification creates a suspect class, and there is no fundamental right involved because all persons have access to the courts so long as they comply with the st^tp-tory conditions,