Opinion
NO. 2018-CA-001589-MR
09-20-2019
STEVE WHEATLEY APPELLANT v. CITY OF ELIZABETHTOWN APPELLEE
BRIEF FOR APPELLANT: Matthew E. Durham Elizabethtown, Kentucky BRIEF FOR APPELLEE: Jason Bell Elizabethtown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE JANET J. CROCKER, JUDGE
ACTION NO. 18-CI-00976 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND NICKELL, JUDGES. CLAYTON, CHIEF JUDGE: Steve Wheatley appeals from the Hardin Circuit Court's order dismissing his premises liability lawsuit against the City of Elizabethtown (the "City") on the grounds that Wheatley's pre-litigation notice was deficient pursuant to Kentucky Revised Statutes (KRS) 411.110. For the following reasons, we affirm.
BACKGROUND
On November 7, 2017, Wheatley tripped and fell in a parking lot belonging to the City. Before filing suit, Wheatley sent the statutorily mandated "notice" letter to the City, which is recited verbatim below:
Pursuant to KRS 411.110, notice is hereby given to the City of Elizabethtown for injury by defect in thorough fair (sic), which occurred on November 7, 2017 at approximately 12:55 p.m. in the parking lot located next to Plum Alley in Elizabethtown, Kentucky. Said defect exists in the parking lot owned by the city at the located (sic) mentioned, more specifically, a parking space situated adjacent to handicap parking spaces.(December 20, 2017 notice.) The City refused to accept liability, so Wheatley filed suit against the City. In response, the City filed a motion to dismiss, arguing that Wheatley's notice was insufficient under KRS 411.110 because Wheatley did not include the mandatory language describing: (1) the place of injury; (2) the circumstances of the injury; and (3) that Wheatley would be claiming damages from the City.
The character and circumstances of the injuries received are as follows: the claimant tripped as a result of the defect causing him to land on his left arm causing injuries including two (2) broken bones in his forearm, shattered radial head of his elbow, a broken nose, and other contusions and injuries to the body as a whole. The person injured as a result of the defect was Steve Wheatley.
The circuit court agreed with the City and granted its motion to dismiss. In its order, the circuit court held that Wheatley's notice was insufficient because KRS 411.110 requires strict compliance and that citing the statute in the notice was not sufficient to cure a deficiency where the notice failed to identify the nature of the defect, and that Wheatley's notice failed to specify what defect had caused him to trip and fall. This appeal followed.
ANALYSIS
As a preliminary matter, we note that a motion to dismiss may only be granted where "it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim." Mitchell v. Coldstream Laboratories, Inc., 337 S.W.3d 642, 644 (Ky. App. 2010) (quoting Pari-Mutuel Clerks' Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977)). Because "a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo." Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010), reh'g denied (Aug. 26, 2010) (citation omitted).
The statute at issue in this appeal, KRS 411.110, states:
No action shall be maintained against any city in this state because of any injury growing out of any defect in the condition of any bridge, street, sidewalk, alley or other public thoroughfare, unless notice has been given to
the mayor, city clerk or clerk of the board of aldermen in the manner provided for the service of notice in actions in the Rules of Civil Procedure. This notice shall be filed within ninety (90) days of the occurrence for which damage is claimed, stating the time of and place where the injury was received and the character and circumstances of the injury, and that the person injured will claim damages therefor from the city.This statute requires a claimant to give notice as a condition precedent to filing suit. Baldridge v. City of Ashland, 613 S.W.2d 430, 431 (Ky. App. 1981).
The purpose behind KRS 411.110 is "to give the city an opportunity to investigate the scene of the accident and correct any defective condition, if such exists[.]" Denton v. City of Florence, 301 S.W.3d 23, 25 (Ky. 2009) (quoting City of Louisville v. O'Neill, 440 S.W.2d 265, 266 (Ky. 1969)). Also, this statute allows the city to evaluate the case and, if liability exists, have an opportunity to settle without long and expensive litigation, which may protect the city's funds. Id. Accordingly, the courts are bound by the express terms of this statute regarding permission to sue a city and have repeatedly held that KRS 411.110 requires strict compliance. Berry v. City of Louisville, 249 S.W.2d 818, 819 (Ky. 1952); see Hancock v. City of Anchorage, 299 S.W.2d 794, 795 (Ky. 1957) ("We have held consistently that compliance with the statute is a prerequisite to the right to invoke the help of the courts."); Wellman v. City of Owensboro, 282 S.W.2d 628, 630 (Ky. 1955) ("We may not disregard the express commands of the Legislature accompanying permission to sue a municipality."). While strict compliance "does not mean that the minutest details of the accident and injury must be given[,]" notice must include each required element. City of Louisville v. Verst, 308 Ky. 46, 48, 213 S.W.2d 517, 518 (1948).
Wheatley argues that KRS 411.110 requires a claimant to provide the "character and circumstances of the injury," not the nature of the defect. He urges the Court to adopt a "plain meaning" interpretation of KRS 411.110 to find the language, "tripped as a result of the defect," as stated in his notice, to be a sufficient description of the "character and circumstances of the injury." As the circuit court properly held, however, a notice that merely states that an injury was caused by a defect "effectively contains no description at all and is therefore insufficient." For instance, in City of Louisville v. O'Neill, the claimant's notice stated her injuries "were brought about by defects in the sidewalk and negligent maintenance by the City of Louisville of the sidewalk at this address." O'Neill, 440 S.W.2d at 266. Kentucky's then-highest Court held this insufficient because "it did not specify in what way the street was defective[.]" Id. Likewise, in Berry v. City of Louisville, the Court held a claimant's notice to be insufficient when it failed to set out the defect in the thoroughfare. Berry, 249 S.W.2d at 819. And, in Treitz v. City of Louisville, 292 Ky. 654, 167 S.W.2d 860, 861 (1943), the Court held a claimant's notice to be insufficient when she claimed to have suffered injuries "due to a depression in the street."
Here, like in O'Neill, Berry, and Treitz, Wheatley's notice is insufficient because he does not state what caused him to trip. From this notice, one cannot identify what defect existed or how the accident occurred. This notice does not give the City a proper opportunity to investigate the cause of the accident. While Wheatley later described tripping on a wheel stop and alleged it was improperly placed in the parking lot, his supplemental letter to the City, sent over four months later, was beyond the statutory ninety-day time period to satisfy the notice requirement of KRS 411.110.
Moreover, Wheatley's notice was insufficient because it failed to specify in which parking space the injury occurred. His notice stated the defect was in "a parking space situated adjacent to handicap parking spaces." By using the plural, the Court assumes the parking lot at issue has more than one handicap parking space. This vague description of the location of the accident, coupled with the failure to specifically identify the defect, was insufficient to put the City on notice. See Dukes v. City of Louisville, 415 S.W.2d 110 (Ky. 1967) (holding notice that plaintiff received injury on defective second square of concrete sidewalk was insufficient to put city on notice as to injury actually received on third section of sidewalk).
Finally, Wheatley argues his notice did not need to state he "will claim damages therefor from the city," which are the words used in the statute, because he specifically cited KRS 411.110 in his notice. He claims this should count as "de facto compliance" because this reference communicates that damages are being sought from the City.
As stated, KRS 411.110 requires strict, not "de facto" or substantial, compliance. This Court recently addressed this issue in Sturgill v. City of Owenton, No. 2015-CA-000586-MR, 2017 WL 4082894 (Ky. App. Sept. 15, 2017), which the circuit court cited in its order. In Sturgill, we concluded a notice was insufficient which omitted any declaration that claimant would claim damages from the City. Id. at *3. "A notice failing to declare the injured party will claim damages from the City is simply insufficient to comply with the statute." Id. While referencing the statute may be an appropriate inference that Wheatley intended to claim damages from the City, an inference is not adequate to satisfy the strict compliance mandate of KRS 411.110. See Berry, 249 S.W.2d at 819 (holding notice which specifically referenced KRS 411.110 was insufficient to cure a notice deficiency).
CONCLUSION
Because Wheatley's notice failed to strictly comply with the requirements of KRS 411.110, we affirm the Hardin Circuit Court order dismissing Wheatley's case against the City.
ALL CONCUR. BRIEF FOR APPELLANT: Matthew E. Durham
Elizabethtown, Kentucky BRIEF FOR APPELLEE: Jason Bell
Elizabethtown, Kentucky