(specially concurring in result).
I specially concur in the result.
I specially concur solely to attempt to protect plaintiffs’ rights although these rights may have been lost in accordance with our Rules of Civil Procedure and judicial announcements.
Judge Wood’s opinion has disregarded the issues raised in the trial court, cast aside defendant’s excellent and provocative brief and created a non-existent summary judgment. The purpose of the opinion was to discover some procedural method that would preserve plaintiffs’ rights in order to effect “justice” as the public understands it — the right to be heard in court. Parties should not suffer the loss of this right if some reasonable method can be devised to overcome serious errors committed in the trial court. I choose to take the route that defendant’s second defense be stricken from the answer.
A. The trial court did not enter a summary judgment.
On June 26, 1980, plaintiffs erroneously sued defendant under the Medical Malpractice Act for injuries suffered by a minor child in defendant’s hospital on February 29, 1978, 16 months prior thereto. Plaintiffs’ complaint did not state a claim for relief because it did not show compliance with § 41-4-16, N.M.S.A.1978. But this issue was not raised in the district court. If it had been, perhaps plaintiffs would have filed an amended complaint to show compliance.
On July 18, 1980, defendant filed an answer, the second defense being:
Plaintiffs have failed to comply with the provision of Section 41-4-1, et seq. (N.M.S.A. Comp., 1978) and particularly Section 41-4-16.
On July 28, 1980, plaintiffs filed a Motion for Hearing on Affirmative Defense as follows:
Comes now the Plaintiffs and show to the Court that Defendant’s Second Affirmative Defense, Failure to Comply with the provisions of Section 41 — 4—1, et seq. NMSA 1978 should be set down for hearing as it would be despositive [sic] of Plaintiffs’ claim.
This motion was not accompanied by any affidavit nor any indication that testimony or depositions would be presented in its support.
On the same day, plaintiffs gave notice to defendant that on August 25, 1980, at 9:15 A.M., the motion would be heard. Plaintiffs estimated that the total time required for all parties and witnesses would be 15 minutes. Defendant expected a “legal argument” hearing. At the hearing, plaintiffs made a two-pronged factual argument: (1) the 90 day notice, as provided in § 41-4-16, was waived due to the minority of the child; (2) the parents did not know of the injury and gave notice within 90 days after the knowledge was obtained. Most of plaintiffs’ argument was spent on the unconstitutionality of § 41-4-16. Authority cited was Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 (Nev.1973), 59 A.L.R.3d 81 (1974). The annotation is devoted to “Modern Status of the Law as to Validity of Statutes and Ordinances Requiring Notice of Tort Claim Against Local Government Entity.”
During the course of plaintiffs’ argument, the statement was made that, unfortunately, although plaintiffs had almost 30 days to prepare one, plaintiffs did not yet have an affidavit prepared to present at the hearing. Plaintiffs’ attorney had been in trial all week and did not “get a chance to get this affidavit prepared and filed.” The trial court orally denied the right of plaintiffs “to proceed, based upon the 90 day notice” and requested an Order to that effect. Plaintiffs then requested that the court allow the filing of an affidavit. The request was allowed. The court stated that plaintiffs would first file the affidavit, then the Order would be signed. This allowance was an accommodation to plaintiffs.
On August 29, 1980, four days after the hearing, plaintiffs filed an affidavit with letters and hospital records attached as exhibits but not made upon personal knowledge. It was subscribed and sworn to on August 27, 1980, two days after the hearing. The record does not show mailing or delivery to defendant nor to the court. No request was made of the court to consider this affidavit and apparently the court did not. On September 30, 1980, a month later, a final Order was entered which dismissed plaintiffs’ complaint with prejudice.
By a series of convolutions unknown to a court of review, by twisting, turning and meandering, Judge Wood’s opinion concluded:
. . . These items converted the “motion to dismiss” hearing into one for summary judgment, see R.Civ.Proc. 12(b), and the order dismissing with prejudice was a summary judgment in favor of defendant. [Emphasis added.]
In this fashion, defendant obtained summary judgment. It was accomplished by way of defendant filing an affirmative defense in its answer. This mystery I cannot solve. It requires the wisdom of Solomon and the dexterity of Houdini. The trial court dismissed plaintiffs’ claim with prejudice for failure to give defendant notice as required by § 41 — 4—16. To convert it into a summary judgment is not a reasonable method of preserving plaintiffs’ rights.
B. Defendant’s affirmative defense should be stricken from the answer.
Section 41-4-16 provides that written notice shall be given “within ninety days after an occurrence giving rise to a claim.” Otherwise, plaintiffs’ claim is lost “unless the . .. [hospital] had actual notice of the occurrence.” If the hospital “had actual notice of the occurrence,” an action may be “commenced within two years after the date of occurrence resulting in loss, injury or death, except that a minor under the full age of seven years shall have until his ninth birthday in which to file.” Section 41-4-15(A).
Defendant takes the position that the affidavit and exhibits filed late by plaintiffs should not be considered by this Court. To do so compels an affirmance of the judgment below. If the defense were based upon substantial evidence, I would agree. If, however, the defense were filed with knowledge that the hospital “has actual notice of the occurrence,” then, it was not filed in good faith. Plaintiffs and defendant were in a sense in pari delicto, equally at fault. In the trial court, plaintiffs did not argue that defendant “had actual knowledge of the occurrence” as shown by the hospital records. This failure falls within the perimeter of inadvertence or lack of preparation. Defendant, on the other hand, knew that it “had actual knowledge of the occurrence” and remained silent. After the fact, all parties know that if the truth were disclosed to the trial court, the affirmative defense would have been stricken from the answer.
“ ‘Even where the contracting parties are in pari delicto, the courts may interfere from motives of public policy.’ ” Dahms v. Swinburne, 31 Ohio App. 512, 167 N.E. 486, 487 (1929). The same rule should be applied here. “The peculiar function of equity is to afford relief for wrong where there is no remedy or no adequate remedy at law.” Bullard v. Zimmerman, 82 Mont. 434, 268 P. 512, 520 (1928).
An “occurrence” is an “event, incident, episode, circumstance,” something that happens or takes place. The “occurrence” took place in the hospital and was recorded from the time of the child’s birth on February 28, 1979, to the time of the last visitation on January 24, 1980, and a hospital report of February 6, 1980. The hospital “had actual notice of the occurrence” which gave rise to a claim. In its Answer Brief in this appeal, the hospital carefully avoided any mention of its actual knowledge.
True, we sit as a court of review to search the record for alleged errors committed in the trial court. On appeal, we do not consider questions which have not been passed upon below. Miller v. Smith, 59 N.M. 235, 282 P.2d 715 (1955); State v. Quesenberry, 72 N.M. 291, 383 P.2d 255 (1963). But, if in the record itself, we discover evidence such as hospital records, the truth of which is not denied by defendant, we do not sit idly by to deprive parties of fundamental rights. We must not allow “injustice” to prevail over “justice” in a court of law or equity. As a result, in an appeal, we cast aside the errors, omissions and mistakes made below and rules applicable thereto. This court is a judicial tribunal engaged in the administration of justice. We adhere to a judicial attribute that parties should not suffer an injustice due to representation if a reasonable method can be found to avoid it.
This discussion does not cast any aspersions on the conduct of the trial court. It had no duty, in advance of a hearing, to study the case in order to resolve a perplexing problem of which it has no knowledge. In advance of a hearing, lawyers have a duty to submit memoranda to assist the court. In the instant case, the trial court had nothing before it other than arguments of lawyers. No request was made either that the trial court consider the affidavit and exhibits before a final order be entered, or that the order be set aside based upon this information.
The hospital’s defense that plaintiffs failed to comply with § 41^4-16 should be stricken.
C. Whether commencement of the notice provision is the day of occurrence is a question of fact.
Section 41-4-16(A) reads in pertinent part:
Every person who claims damages . .. under the Tort Claims Act . . . shall cause to be presented . .. within ninety days after an occurrence giving rise to a claim ... a written notice stating the time, place and circumstances of the loss or injury. [Emphasis added.]
The statute is silent on the meaning of “an occurrence giving rise to a claim.” It is a difficult and complex legal problem that demands a fair result to both the governmental entity and the person who claims damages.
Absent “actual notice of the occurrence" by the governmental entity, the notice provision is a condition precedent to the bringing of an action. The giving of the notice is jurisdictional. Fry v. Willamalane Park & Recreation District, 4 Or.App. 575, 481 P.2d 648 (1971); Awe v. University of Wyoming, 534 P.2d 97 (Wyo.1975); Yotvat v. Roth, 95 Wis.2d 357, 290 N.W.2d 524 (1980). See, Espanola Housing Authority v. Atencio, 90 N.M. 787, 568 P.2d 1233 (1977). It is not a statute of limitations. It creates a new liability unknown to the common law. It is a statute of creation that does not fix the time in which an action may be commenced. The time of commencement is fixed by a statute of limitations.
Avoiding the circumstances under which Peralta v. Martinez, 90 N.M. 391, 564 P.2d 194 (1977) became the opinion of this Court, Judge Wood held in this medical malpractice case that “the limitation period begins to run from the time the injury manifests itself in a physically objective manner and is ascertainable.” [Id. 394, 564 P.2d 194.] Judge Wood now states:
... If Peralta v. Martinez may be applied, the time period for notice did not begin to run until the injury manifested itself in a physically objective manner and was ascertainable.
In other words, a notice “within ninety days after an occurrence giving rise to a claim” may be synonymous with a notice within ninety days (after an occurrence) when an injury manifested itself in a physically objective manner and was ascertainable. By this analogy, § 41-4-16(A) was changed into a “notice of injury” statute. If so, Yotvat, supra, relied on by the hospital is directly in point.
In Yotvat, plaintiffs’ complaint was dismissed for failure to show compliance with the notice statute and for lack of jurisdiction. Plaintiffs discovered that they had a claim within the 90 day period but did not give notice until some six days after the period had run. The Wisconsin statute provided that notice be given “within ninety days of the event causing the injury . . . giving rise to a civil action .... ” [Emphasis added.] The court said that the statute “is a notice of injury statute ...” and:
We conclude that the period in which notice must be given . . . runs from the event causing the injury . . . regardless when the event is discovered by the claimant. [Emphasis added.] [Id. 528.]
The Wisconsin statute adds a factor that is absent from the New Mexico statute— “the event causing the injury.” An “event” that causes an injury is an event of such nature, force and effect that a reasonably prudent person knows or should know that it has resulted in what would be called a “medical” injury. A “pain” can be classified as injury. Herndon v. Albuquerque Public Schools, 92 N.M. 635, 593 P.2d 470 (Ct.App.1978).
In 1914, Justice Shelton, in the case of In re Burns, 218 Mass. 8, 105 N.E. 601, 603 (1914) defined “injury” in common speech that has been generally adopted. . It reads:
... In common speech the word “injury” as applied to a personal injury to a human being, includes whatever lesion or change in any part of the system produces harm or pain or a lessened facility of the natural use of any bodily activity or capability. If one by external violence had his optic nerve severed close to the brain, or its function destroyed so as to result in blindness, although nothing whatever had been done to the eyes themselves or to the structures immediately surrounding them, it yet would be said in common speech that his eyes had been injured to the point of uselessness. Whatever part of the human body thus has been made inAPPLICable of its normal use so that practically it has ceased to be available for the purpose for which it was adapted, is certainly injured according to the common understanding of men. . . . [Emphasis added.]
In re Fitzgibbons’ Case, 374 Mass. 633, 373 N.E.2d 1174 (1978); Workmen’s Comp. v. Bernard S. Pincus Co., 479 Pa. 286, 388 A.2d 659 (1978); Jennings v. Louisiana and Southern Life Ins. Co., 290 So.2d 811 (La. 1974); Aetna Casualty and Surety Company v. Moore, 361 S.W.2d 183 (Tex.1962); Roper v. Kimbrell’s of Greenville, 231 S.C. 453, 99 S.E.2d 52 (1957); Brown Shoe Company v. Reed, 209 Tenn. 106, 350 S.W.2d 65 (1961); Burlington Mills Corporation v. Hagood, 177 Va. 204, 13 S.E.2d 291 (1941); Wasmuth-Endicott Co. v. Karst, 77 Ind. App. 279, 133 N.E. 609 (1922).
The “Notice of injury” statute requires an occurrence of such nature, force and effect that it “produces harm or pain or a lessened facility of the natural use of any bodily activity or capability.” If the event is of such magnitude, or the injuries are of such degree as to compel notice as a matter of law, the 90 day notice commences to run from this event. If the event is trivial as a matter of law, one that is commonplace, ordinary, or insignificant, the 90 day notice does not commence to run even though casual or latent injuries subsequently develop into serious ones. If either event does or does not compel notice as a matter of law, it is proper to leave the matter to the jury under an appropriate instruction which states the plaintiff’s duty to give notice in accordance with the statute. The jury shall say whether the circumstances of the event were such as would suggest to one of. ordinary and reasonable prudence whether the 90 day notice commenced to run from the day of the event.
This rule is equally applicable under the New Mexico statute. It provides that notice shall be given “within 90 days after an occurrence giving rise to a claim.” To give rise to a claim, the event must be of such magnitude, force and effect that it causes an injury. When this occurs as a matter of law, the 90 day notice commences to run the day of the event. Otherwise, the day of commencement becomes an issue of fact for the jury.
This fair and reasonable view is supported by Southern Surety Co. v. Heyburn, 234 Ky. 739, 29 S.W.2d 6 (1930); Lennon v. American Farmers Mutual Insurance Co., 208 Md. 424, 118 A.2d 500 (1955); Silver v. Indemnity Ins. Co. of North America, 137 Conn. 525, 79 A.2d 355 (1951). These are insurance policy cases with provisions such as “any occurrence which might result in a claim,” or notice “as soon as practical” which means an accident sufficiently serious to give rise to a claim for damages.
The reasoning is fluent. It all depends upon whether the occurrence is sufficiently serious to lead a person of ordinary intelligence and prudence to believe that it might give rise to a claim. The information about the occurrence ordinarily is peculiarly within the knowledge of the person who seeks a claim for relief. Therefore, the duty is laid upon this person to give notice to the local government entity in accordance with law. No duty arises if the person, such as the mother of a minor child, is ignorant of the fact that an occurrence has taken place with reference to her child. It would not be reasonable to lay upon the mother the obligation to disclose information of which she is justifiably ignorant. The same is true if the mother knew the facts surrounding some event affecting her child which were trivial. The 90 day notice does not begin to run the day of the occurrence. As a result, no occurrence took place which gave rise to a claim within 90 days thereafter. Only, when a question of fact exists as to whether the occurrence gave rise to a claim, does the trier of the fact determine whether or not the 90 day notice commenced on the day of the occurrence.
This question of fact should be submitted to the jury.
The constitutional question has been left in abeyance. See Martinez v. City of Clovis, 95 N.M. 654, 625 P.2d 583 (1980), Sutin, J., specially concurring.