Shawn Richard O'Hara v. City of Hattiesburg, Mississippi, 222 So. 3d 314

Background

On February 7, 2014 Shawn O’Hara fell into a sinkhole in a Hattiesburg street and was injured; he later filed suit against the City of Hattiesburg seeking substantial actual and punitive damages.
O’Hara filed his complaint in Forrest County Circuit Court nearly a year after the incident.
The circuit court dismissed the complaint without prejudice for insufficient service of process and for failure to provide proper pre‑suit notice required by the Mississippi Tort Claims Act (MTCA).
O’Hara had initially attempted service on the city attorney’s wife and later on the city attorney; the record shows he served the mayor and acting city clerk within 120 days after filing.
The City produced a handwritten notice O’Hara allegedly delivered pre‑suit; the trial court reviewed it and found it omitted several of the seven statutorily required notice elements.
O’Hara did not include any copy of the notice in the appellate record; the Court of Appeals affirmed dismissal based on the MTCA pre‑suit notice deficiency.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether service of process was insufficient	O’Hara contended he properly served municipal officials (later served mayor and acting clerk)	City argued initial service attempts (city attorney’s wife/attorney) did not comply with Rule 4(d)(7)	Court: Initial dismissal for insufficient service was premature because plaintiff served required officials within the 120‑day Rule 4 period; service ultimately satisfied Rule 4
Whether O’Hara complied with MTCA pre‑suit notice requirements	O’Hara asserted he provided typed notice and informed city HR/insurer; claimed he had given necessary notice	City argued the handwritten notice they received did not include required elements and thus failed to substantially comply with §11‑46‑11	Court: Affirmed dismissal — plaintiff failed to show substantial compliance; trial court correctly found notice insufficient and dismissal without prejudice appropriate
Whether appellate court could review sufficiency of the notice	O’Hara argued the trial court erred in finding notice insufficient	City pointed out the handwritten notice was reviewed by trial court and in record evidence issues	Court: Because appellant failed to include the notice in the appellate record, the Court of Appeals accepted the trial court’s factual finding and declined to reverse
Proper remedy for failure to comply with MTCA notice	O’Hara sought reinstatement of his complaint	City sought dismissal without prejudice for lack of pre‑suit notice	Court: Dismissal without prejudice is the correct remedy when MTCA notice is inadequate

Key Cases Cited

McGinnis v. Shalala, 2 F.3d 548 (5th Cir. 1993) (service‑period rule: dismissal for defective service is premature while the permitted service period remains)
Lee v. Mem’l Hosp. at Gulfport, 999 So. 2d 1263 (Miss. 2008) (Mississippi requires substantial compliance with MTCA notice requirements)
S. Cent. Reg’l Med. Ctr. v. Guffy, 930 So. 2d 1252 (Miss. 2006) (identifies the seven statutorily required elements of MTCA notice)
Reaves ex rel. Rouse v. Randall, 729 So. 2d 1237 (Miss. 1998) (purpose of MTCA notice is to inform governmental entities of claims)
Pennington v. Dillard Supply Inc., 858 So. 2d 902 (Miss. Ct. App. 2003) (appellant must include necessary portions of the trial record for appellate review)
Tallahatchie Gen. Hosp. v. Howe, 154 So. 3d 29 (Miss. 2015) (failure to provide proper MTCA pre‑suit notice requires dismissal without prejudice)
Penn Nat’l Gaming Inc. v. Ratliff, 954 So. 2d 427 (Miss. 2007) (at motion‑to‑dismiss stage, well‑pled factual allegations are accepted as true)