Kennedy v. City of Talihina
2011 OK CIV APP 108
| Okla. Civ. App. | 2011Background
- Kennedys allege sewer backflow into their Talihina home on November 10, 2008, asserting negligence, trespass, and nuisance.
- Two GTCA notices were filed: first on Nov 14, 2008 seeking property damage; second on Nov 7, 2009 asserting personal injuries and other damages.
- Town did not respond to either Notice; first notice denied by silence after 90 days, triggering a statute of limitations clock.
- Suit filed April 14, 2010; district court dismissed property damage claim as time-barred but allowed other claims to proceed.
- Court analyzes GTCA notice and filing deadlines; holds property damage claim time-barred, but personal injury/other damages in second notice timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of first notice on timeliness | First notice did not cover personal injuries, only property damage. | First notice bound all Kennedys and precluded later claims. | Property claim time-barred; precluded for that claim only. |
| Effect of second notice on new claims | Second notice raises timely personal injury and other damages separate from property. | Second notice cannot evade the first denial and deadlines. | Second notice timely; permits personal injury/other damages claim to proceed. |
| Whether separate notices for different claim types are permissible | GTCA allows separate notices for distinct injury types. | Notice system should aggregate claims and limit duplicative filings. | Permissible; separate notices for different injury types are allowed, subject to overall limits. |
Key Cases Cited
- Walker v. City of Moore, 1992 OK 112, 836 P.2d 1289 (OK 1992) (derivative vs. non-derivative claims; aggregation rules)
- Shanbour v. Hollingsworth, 1996 OK 67, 918 P.2d 73 (OK 1996) (timeliness and denial mechanics under GTCA)
- Bivins v. State ex rel. Oklahoma Mem'l Hosp., 1996 OK 5, 917 P.2d 456 (OK 1996) (notice amendments and information requests extending filing time)
- Conway v. Ohio Cas. Ins. Co., 1983 OK 83, 669 P.2d 766 (OK 1983) (purpose and liberal construction of notice provisions)
- Reirdon v. Wilburton Bd. of Educ., 1980 OK 67, 611 P.2d 239 (OK 1980) (object of notice statute; ends of justice)