Thе INDEPENDENT SCHOOL DISTRICT OF BOISE CITY et al., Plaintiffs, v. Marion J. CALLISTER, Judge of the District Court of the Fourth Judicial District for the State of Idaho, IN AND FOR the COUNTY OF ADA, Defendant.
No. 11744.
Supreme Court of Idaho.
Aug. 12, 1975.
Rehearing Denied Oct. 3, 1975.
539 P.2d 987 | 97 Idaho 59
Ellison W. Matthews, Matthews & Lee, Boise, for defendant.
SHEPARD, Justice.
This is an original proceeding seeking a writ of mandate against a district judge. Parties to special proceedings are properly referred to as “plaintiff” and “defendant,”
Patterson, (plaintiff below) was a student at Capital High School in Boise, Idaho and on November 24, 1971 was injured in a trampoline accident while participating in a physical education class at the school. He was a minor at that time but attained his majority on January 20, 1973. A claim for damages resulting from the accident was filed on May 7, 1973, almоst a year and a half after the accident, but within 120 days of his attainment of majority. That claim was denied by the school district and suit instituted on November 23,
A writ of mandate will not ordinarily issue to control the discretionary decision of a lower court, Freeman v. McQuade, 80 Idaho 387, 331 P.2d 263 (1958); Felton v. Prather, 95 Idaho 280, 506 P.2d 1353 (1973). However the parties hereto raise no issue as to that point. Petitioners contend that the failure of the district judge to apply the notice of claim statute was an abuse of his discretion and that the application of established law under undisputed facts require that his discretion can be exercised in but one way. They further argue that to require them to proceed to trial would involve only the determination of irrelevant collateral issues, would waste judicial resources and hence serve no purpose. They argue therefore that they are without a plain, speedy and adеquate remedy in the ordinary course of law.
Whether a writ should issue in such circumstances is a matter committed to the discretion of this court. Hunke v. Foote, 84 Idaho 391, 373 P.2d 322 (1962). We deem the issues presented here to be of great moment and require speedy resolution. It is also clear that the issues, excepting only that discussed infra, are solely questions of law. Therefore, we are more liberal in the entertaining of a writ of mandate when dealing with new and important lеgal questions of statewide concern. See Rich v. Williams, 81 Idaho 311, 341 P.2d 432 (1959); Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L. Ed.2d 152 (1964). With the caveat that only under such extraordinary circumstances as are present here will the normal appellate processes be circumvented, this court issued its alternative writ and we now proceed to a consideration of the issues. Compare Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974).
“6-906. Filing claims against political subdivision—Time. All claims against a political subdivision arising under the provisions of this act shall be рresented to and filed with the clerk or secretary of the political subdivision within one hundred twenty (120) days from the date the claim arose or reasonably should have been discovered, whichever is later.”
Our opinion in Newlan v. State and Agost v. State, 96 Idaho 711, 535 P.2d 1348 (1975), is dispositive of the arguments raised by respondents herein regarding the unconstitutionality of the statute. Therein we further stated that compliance with the statute is mandatory. In Newlan and Agost we further held that there was not present actual notice to the state so as to make literal compliance unnecessary and in this regard we distinguished Jorstad v. City of Lewiston, 93 Idaho 122, 456 P.2d 766 (1969).
This case, however, presents new questions not encompassed by the facts of Newlan or Agost. Plaintiff below argues first that because the Independent School District of Boise operates by virtue of a charter from the Idaho Territorial Legislaturе it is not subject to the notice of claim requirement of the Idaho Tort Claims Act because such is general legislation and only special legislation affects the said Independent School District. Bagley v. Gilbert, 63 Idaho 494, 122 P.2d 227 (1942). Bagley, however, provides that the provisions of a special charter supersede and prevail over any inconsistent provisions contained in the
Plaintiff below, also argued that the notice of claim is not required when recovery is sought from the liability carrier of the governmental entity. No insurance company is a party to the action and we find such argument to be without merit.
The district court accepted the argument of plaintiff there that the notice period of the statute is tolled during the minority of the claimant, particularly in view of the fact that he was incapacitated. (The record appears to be clear thаt plaintiff became a quadriplegic occasioned by the injuries sustained in the accident). Plaintiff below argued that he complied with the statute since he filed a notice of claim within 120 days of attaining his majority. That question has never been presented to this court but in other states there is a split in authority. See generally 34 A.L.R.2d 725 (1954), and 44 A.L.R.2d 1108 (1972). Other states and the district judge in the court below reason that minors should be excepted from the coverage of the statutory notice requirements since it would be unfair to deprive such a person of his claim because he could not act and others refused to act for him. A distinguishing factor is that in such cases the statutes have contained no reference to minors or the incapacitated. Such is not the case with the Idaho Tort Claims Act which provides in pertinent part in
“* * * If the claimant is incapacitated from presenting and filing his claim within the time prescribed or if the claimant is a minor * * * the claim may be presented and filed on behalf of the claimant by any relative, attorney or agent representing the claimant.”
Such statutory language makes clear that minors and those suffering incapacities were not intended to be exempted from the requirements of the act.
Plaintiff below urges our adoption of the ruling of Cook v. State, 83 Wash.2d 599, 521 P.2d 725 (1974). In that case the plaintiff was a 13 year old girl who had been severely injured in an accident and was incapacitated until the statutory notice period had expired. Her mother was allegedly uneducated, grief stricken and failed to file the notice of claim for the child. The Washington court, relying heavily on Maier v. Ketchikan, 403 P.2d 34 (Alaska 1965), held that it would do violence to due process and equal protection concepts to apply that statute against the plaintiff, and the court concluded that in such cases where the facts of incapacity justified it, a reasonable time within which a claim could be filed would be 120 days following the removal of the disability. In Washington the statute provided that the claim must be filed “within one hundred twenty days from the date that the claim arose.” Cook v. State, 521 P.2d at 726. In Idaho, however, the statutory time is measured “from the date the claim arose or reasonably should have been discovered, whichever is later.”
It is undisputed here that plaintiff was both a minor and substantially incapacitated by his injury. However, it is also undisputed that plаintiff‘s mother contacted a lawyer in connection with the injury immediately after the accident. This
Respondent here argues that the notice of claim requirement is but a statute of limitations and thus tolled for minоrs. We reject that argument since the Tort Claims Act has an express statute of limitations which begins to run commencing with the filing of the notice of claim.
Plaintiff below also argues that the governmental entity (defendant below) had substantial actual notice of the injury. Substantial actual notice was held to be an exemption from a statutory notice requirement in Jorstad v. City of Lewiston, 93 Idaho 122, 456 P.2d 766 (1969). In Newlan v. State, supra, we questioned the continued validity of Jorstad in light of subsequent events, i. e. the Idaho Tort Claims Act and Carter v. Allan, 94 Idaho 190, 484 P.2d 739 (1971). In Newlan, however, we distinguished Jorstad. Here, however, plaintiff argues correctly that the Jorstad rationale of “substantial actual notice” is applicable to the facts of this case. We agree. Nevertheless we disagree that Jorstad has any continued vitality and we now expressly overrule Jorstad insofar as it was therein held that plaintiffs were exempt from notice of claim requirements because of minority, “substantial actual notice” having been given or because of the relative sizе of the governmental units, i. e., a city as contrasted with a state.
The alternative writ is made permanent insofar as it requires the district judge to vacate his order striking all defenses relating to the statutory notice of claim requirement. The alternative writ insofar as it requires the district judge to vacate his order denying summary judgment is modified and the district judge is directed to, if necessary, take further proof on the question of whether or not plaintiff‘s claim should “reasonably have been discovered” within a time framework activating the requirements of the statutory notice of claim requirement and thereafter enter an order denying or granting the defense motion for summary judgment. In the event that district judge determines that the resolution of such question of fact is not appropriate upon a motion for summary judgment, he is authorized thereafter to deny plaintiff‘s motion for summary judgment and proceed to trial for a resolution of that question. No costs allowed.
McQUADE, C. J., and SCOGGIN, D. J., (Retired) concur.
McQUADE, Chief Justice (specially concurring).
I continue to adhere to the views I expressed in my dissent in the Newlan and Agost cases, and believe that the reasoning set forth in that dissent is equally applicable if not more compelling to the case at hand. However, as a majority of this Court is not persuaded to adopt my reasoning, I feel bound by the holding of the Newlan and Agost decisions.
DONALDSON, Justice (dissenting).
I dissent from the position of the majority requiring technical compliance with notice requirements of the Idaho Tort Claims Act,
The purpose and intent of notice of claim statutes is to provide the party against whom an action has been filed time to investigate the claim, determine its merits, and prepare a defense if necessary. In Jorstad v. City of Lewiston, 93 Idaho 122, 456 P.2d 766 (1969), a notice of claim statute contained within the Charter of the City of Lewiston was construed as follows:
“It is now well-established law in this jurisdiction that the purpose and intent of these notice statutes is two-fold:
(1) to save needless litigation and expense by providing an opportunity for amicable adjustment of the differences between the parties. Giffin (Giffen) v. City of Lewiston, 6 Idaho 231, 55 P. 545 (1898); and
(2) to provide ‘such information that the authorities may be able to make a full investigation of the cause of the injury and determine the city‘s liability therefor.’ Dunn v. Boise City, 45 Idaho 362, 367, 262 P. 507, 509 (1927); Cox v. City of Pocatello, 77 Idaho 225, 234, 291 P.2d 282 (1955); McLean v. City of Spirit Lake, 91 Idaho 779, 782, 430 P.2d 670 (1967); Weaver v. Village of Bancroft, 92 Idaho 189, 439 P.2d 697, 700 (1968).
“In determining whether the purpose of the statute has been achieved, it must be borne in mind, that ‘a substantial compliance is all that is required in specifying the time, place, charаcter and cause of said damage. * * * The object of the statute must be kept in mind, and it should not be given a construction which will defeat the ends of justice.’ Dunn v. Boise City, supra; Cox v. City of Pocatello, supra; McLean v. City of Spirit Lake, supra; Weaver v. Village of Bancroft, supra.” 93 Idaho 125, 126, 456 P.2d 769.
In the case at bar, the governmental entity involved was given sufficient actual notice to fall within the doctrine of substantial compliance as set forth in Jorstad. On the very date of the accident, numerous affidavits were filed with the school by students who observed the conduct in question. These affidavits contained circumstances of the accident and notice of probable injury. In addition, documents were later prepared at the request of officials and agents of Capital High School and the Independent School District of Boise City. One of these documents entitled “State Department of Education Accident Report Form” is directed to the “Independent School District of Boise City” and bears the date of Nоvember 24, 1971. Therein, the date of the accident is set forth as November 24, 1971. Thus, it is obvious that the district had actual knowledge, through a report made on its own form and signed and subscribed by a person bearing the title “District Supervisor of Safety Education” of the injury to Scott Patterson on the date of the injury itself. Looking at the requirements of
It is my belief the above facts fall squarely within the doctrine of substantial compliance, and the respondent should be granted relief under the holding of Jorstad.
BAKES, Justice (dissenting):
I agree with the district court‘s determination that the 120-day notice of claim provision of the Idaho Tort Claims Act does not apply to minors.
The majority quotes the following passage from
“* * * If the claimant is incapacitated from presenting and filing his claim within the time prescribed or if the claimant is a minor * * * the claim may be presented and filed on behalf of the claimant by any relative, attorney or agent representing the claimant.” (Emphasis added).
This section does not say that a relative, аttorney or agent representing a minor claimant must present and file a claim within 120 days; it says such a representative may file a claim within 120 days. The section recognizes that others may act to protect a minor‘s rights, but it does not require them to act in order to preserve the minor‘s rights.
Thus, the Idaho Tort Claims Act is not inconsistent with
“5-230. Persons Under Disabilities—If a person entitled to bring an action, * * * be, at the time the cause of action accrued, * * *
“1. Within the age of majority; * * *
“The time of such disability is not a part of the time limited for the commencement of the action.”
“[I]t would be fundamentally unfair for a minor to be denied his recourse to the courts because of circumstances which are both legally and practically beyond his control. The legal disabilities of minors have been firmly established by common law and statute. They were established for the protection of minors, and not as a bar to the enforcement of their rights. (Citation omitted). The legislature recognized this when it inserted the provision in [the nonclaim statute] allowing a relative, agent or attorney to file a claim on behalf of the minor. However, any argument that this provision sufficiently protects the interests of the minor was disposed of in [Cook v. State, 83 Wash.2d 599, 521 P.2d 725 (1974)], wherein it was stated:
’ “The possibility that a friend or relative may possess the foresight to file a
timely claim on behalf of an incapacitated victim, in our view, provides too slender a reed to bridge the inherent discrimination, and it becomes arbitrary and unreasonable when it penalizes the incapacitated if a friend or relative through inadvertence or ignorance fails to act.” ’ “* * * A minor lacks the caрacity to appoint an attorney, and his capacity to appoint an agent is disputable. (Citation omitted). As stated, his right of action should not depend on the good fortune of having an astute relative or friend to take the proper steps on his behalf.
“It is noteworthy that minority alone is a disability which tolls the general statute of limitation. (Citation omitted). There is no reason why the minor should not be similarly protected when the alleged wrongdoer is a governmental entity. To grant the minor protection in one situation and not the other is arbitrary and manifestly unjust.
“We * * * hold that a person under the age of 18 is as a matter of law excused from compliance with [the nonclaim statute]. Also, * * * we hold that the right of action must be preserved by filing the claim within 120 days from the removal of the disability. Our reason is that the minor, whether mature or immature, seriously disabled or otherwise, lacks the means fоr personally complying with the statute until the time the disability caused by his age is removed.” 529 P.2d at 899-900.
I agree with the analysis of the Washington Court of Appeals insofar as it bases its decision upon statutes tolling the notice of claim requirement during a plaintiff‘s minority and upon a minor plaintiff‘s legal inability to protect his rights by initiating suit on his own behalf. I cannot believe it was in the contemplation of the legislature to implicitly repeal
The majority avoids the question of construing
Finally, although this was not the situation in the case before us, it is not infrequent in automobile accidents for very young children to be orphaned or to lose the оnly parent that they are living with who is caring for them. See, e. g., Jorstad v. City of Lewiston, 93 Idaho 122, 456 P.2d 766 (1969). It cannot be seriously asserted that children in such circumstances are capable of protecting their interests or that there will be a party available who can protect the children‘s interest by filing a notice of claim within 120 days. I cannot believe the legislature intended to prevent such claimants from bringing their action by non-compliance with the notice of claim statute. Yet, if the majority‘s holding is the law, this Court will be inexorably bound to such a result.