Gaskins v. District of Columbia

ROGERS, Chief Judge,

concurring:

In view of our decisions in Washington v. District of Columbia, 429 A.2d 1362 (D.C.1981) (en banc), and Dixon v. District of Columbia, 168 A.2d 905 (D.C.1961), I join the majority opinion. M.A.P. v. Ryan, 285 A.2d 310 (D.C.1970). The effect of our continuing interpretation of the requirements of the notice statute, however, is to undermine the purpose of the statutory requirement that as a prerequisite to filing suit against the District of Columbia it must be given notice, within six months of the injury or damage, “of the approximate time, place, cause, and circumstances of the injury or damage.” D.C.Code § 12-309 (1989 Repl.).

In Washington v. District of Columbia, the court stated that D.C.Code § 12-309 “was designed to protect the District of Columbia against unreasonable claims and to give the District officials reasonable notice of the accident so that the facts may be ascertained and, if possible, the claim adjusted.” 429 A.2d at 1368 (quoting Hurd v. District of Columbia, 106 A.2d 702, 704 (D.C.1954) which, in turn, was quoting the legislative history of the statute). As the majority states, the adequacy of the notice is to be determined solely on the face of the notice and precise exactness of details is not “absolutely essential.” See majority opinion at 721, supra (quoting Washington v. District of Columbia, supra, 429 A.2d at 1365 (further citations omitted)). Rather, all that we require is that the notice furnish “a reasonable guide for inspection.” Dixon v. District of Columbia, supra, 168 A.2d at 905.1 Here, however, as in Dixon, the District investigator determined that he could not locate the defect in the sidewalk which allegedly caused the injury to the plaintiff and asked plaintiff’s counsel to provide further information. Counsel did not, and subsequently filed suit against the District.

Just as the court in Dixon was not troubled by the failure of the plaintiff’s counsel to respond to the District’s request for additional information, and in the absence of any finding by the trial court that the District’s investigator did not exercise due diligence in trying to locate the defect, see Dixon, supra, 168 A.2d at 907 (due diligence standard), the court today holds that the plaintiff’s notice was adequate under the statute. The question is adequate for what. The District could not locate the defect; hence, the District could not determine its potential liability; hence, the plaintiff’s claim could not be settled without litigation.2

*725Consequently, it appears that we have reached the point where, even if the written notice is, in fact, inadequate to enable the District’s presumably diligent investigator to identify the alleged defect, it is nevertheless legally sufficient and the plaintiff and plaintiff’s counsel may ignore, without fear of being barred from filing suit, a request by the District for further information that would enable it to locate the defect. Thus, suits will be filed that might otherwise have been settled since the defect will go undetected — had it been found the District might have settled the plaintiff’s claim and repaired the defect to prevent harm to others. Surely something is amiss.

. In Dixon, the court was satisfied that the District inspector, by "a studied search, instigated by [the plaintiff’s report of a faulty sidewalk], could reasonably be expected to have revealed the affected area upon examination of the perimeter of the sidewalk contiguous to the street," and thereby found the faulty condition which, in fact, was in the gutter, and not the sidewalk. The court noted that the “ruts were not inconspicious nor were they far removed from the sidewalk; on the contrary, [the plaintiffs] photographs show them as prominent and immediately next to the sidewalk." 168 A.2d at 907.

. In fact, according to the affidavit filed by appellant in response to the District’s motion for summary judgment, the defect in the sidewalk was located by the plaintiff's investigator and repaired in July-August 1986. This was nine to ten months after the plaintiffs fall. Nevertheless, this should not excuse plaintiff's counsel . failure to respond to the District's request for additional information. There is no finding by *725the trial court that the District's investigator did not exercise due diligence or that the District was not prejudiced. See majority opinion at 723 n. 5 and surrounding text citing cases in which there was a finding of no prejudice. See Levine v. City of New York, 111 A.D.2d 785, 490 N.Y.S.2d 533, 535-36 (2 Dept.1985) (notice of claim did not provide reasonable basis for city to adequately investigate since, despite sufficient description of location of accident, city had no idea what it would be looking for at that location; city prejudiced when not able to conduct proper investigation while facts surrounding incident were still fresh).