January 12, 2011
The Indiana Court of Appeals provided guidance on what notice is sufficient under the Tort Claims Act and clarified when a temporary weather condition can immunize a governmental entity on December 17, 2010 in
Simpson v. OP Property Management, LLC, 939 N.E.2d 1098 (Ind. Ct. App. 2010), Case No. 49A05-1006-CT-35. It held that the notice a plaintiff provides is sufficient if it provides the basic legal theory and set of facts. It also held that a governmental entity is not immune from suit due to a temporary weather condition if that governmental entity is not responsible for maintaining the affected area.
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One morning, the plaintiff was driving toward the exit of her apartment complex. There is a steep decline near the exit, and as the plaintiff began driving downhill, she saw that there was a car turned the wrong way in her lane. The plaintiff was unable to stop and slid into the other car. Then, a school bus came over the hill and slid into her car. Two more cars came over the hill and collided with the plaintiff's vehicle.
A few months later, the plaintiff sent a notice of tort claim to the local school district. The notice described the accident and alleged that the school district had negligently hired and trained its school bus drivers. The plaintiff later filed suit, alleging that the bus driver had negligently operated the bus and that the school district was vicariously liable. The school district moved for summary judgment and the trial court granted that motion. The plaintiff appealed.
On appeal, the Court first addressed whether the plaintiff's tort claim notice was sufficient. The school district argued that the plaintiff presented a different claim in her complaint than in her tort notice. The Court disagreed.
While Simpson's notice and complaint could have been more clearly drafted, we are not persuaded that Simpson's notice was inadequate. Simpson's claim that the School District negligently hired and trained Matesick by implication indicates that she was claiming that Matesick's conduct was wrongful. We are hard pressed to see how the School District could be negligent by hiring and training a bus driver who had done nothing wrong. Simpson's complaint clearly states a claim for the School District's vicarious liability, but also alleges that the School District is independently liable, which is easily understood as a reference to her claims in the tort notice that the School District negligently hired and trained Matesick.
...
Simpson, however, alleged negligence, and only negligence, in both her notice and her complaint, and her various theories of liability all stemmed from the same set of facts. Appellees have not directed us to any decisions that would support their claim that Simpson's notice was deficient. In light of our rule that the notice requirements are to be strictly construed against limiting the claimant's right to sue, we conclude that Simpson's notice was adequate.
The Court then held that the school district was not immune from suit, despite the fact that the accident was caused by a temporary weather condition.
I.C. § 34-13-3-3(3) provides that a governmental entity or employee acting within the scope of employment is not liable if a loss results from the "temporary condition of a public thoroughfare … that results from weather." The Court held that this "subsection applies only to a situation where the governmental entity being sued had a responsibility to maintain the roadway; whether someone had the opportunity to clear the incline where [the bus driver] lost control of the bus has no bearing on the propriety of his actions." It, therefore, held that the school district was not immune from suit.
The Court finally concluded that there were genuine issues of fact that precluded summary judgment on the issues of liability and contributory negligence.
The Court's holdings certainly appear to be plaintiff-friendly. A governmental entity is now only immune from suit due to a temporary weather condition if that entity has some responsibility for alleviating that condition. Likewise a plaintiff need only notify a governmental entity of the facts and a general idea of what legal theory the plaintiff will be pursuing. It will be interesting to see if these holdings are outliers or a sign of the times.
Lessons:
- A tort claims notice is sufficient if it gives a basic legal theory and the applicable facts, even if the plaintiff pursues a different version of that basic legal theory at trial.
- A governmental entity is only immune from suit due to a temporary weather condition if that entity has some responsibility for alleviating that weather condition.
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