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01/17/90 WILLIAM A. CAMPBELL v. DISTRICT COLUMBIA

January 17, 1990

WILLIAM A. CAMPBELL, JR., AND DAVID R. CAMPBELL, AS PERSONAL REPRESENTATIVES OF THE ESTATE OF FRANCES CAMPBELL, APPELLANTS
v.
DISTRICT OF COLUMBIA, ET AL., APPELLEES



Appeal from the Superior Court of the District of Columbia; Hon. Bruce D. Beaudin, Trial Judge.

Before Belson, Terry, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Belson

Before BELSON, TERRY, and SCHWELB, Associate Judges.

BELSON, Associate Judge : This is an appeal from the trial court's dismissal of appellants' complaint against the District of Columbia on the ground that appellants failed to comply with the notice requirement of D.C. Code § 12-309 (1989 Repl.). We affirm.

Frances Campbell collapsed inside a bank in the northeast quadrant of the city. A bank employee called the 911 emergency telephone number and gave the dispatcher the address of the bank. The dispatcher, however, recorded the address as "Northwest" and directed an ambulance to the wrong quadrant. The dispatcher subsequently sent a second ambulance, which reached the bank 18 to 30 minutes after the bank employee first called 911. Mrs. Campbell died shortly after arriving at Capitol Hill Hospital.

Appellants, the personal representatives of the estate of Mrs. Campbell, filed a wrongful death claim against the District of Columbia alleging, among other things, that the city was negligent in not providing a more comprehensive training program for ambulance dispatchers. Appellants did not give prior written notice of the injury to the mayor as required by D.C. Code § 12-309 (1989 Repl.). The complaint itself, however, was filed within the six-month statutory period for giving notice.

On appeal, appellants contend that the filing and service upon the mayor of the complaint within six months of the incident satisfied the intent and spirit of the notice requirement under § 12-309, and should be deemed to have fulfilled the statutory notice requirement. We disagree.

Section 12-309 of the D.C. Code provides:

An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular course of duty, is a sufficient notice under this section.

We have previously observed that because § 12-309 is in derogation of the common law concept of sovereign immunity, it must be strictly construed in favor of the sovereign, i.e., against waiver of immunity. See Pitts v. District of Columbia, 391 A.2d 803, 807 (D.C. 1978). No special strictness of construction is required to uphold the trial court's ruling here. The explicit requirement of the statute that "the claimant . . . has given notice in writing," expressed in the perfect tense, makes it plain that notice must have been given before suit. Accordingly, in Gwinn v. District of Columbia, we stated:

Notice under § 12-309 is a "condition precedent" to filing a suit against the District. Wilson v. District of Columbia, D.C.App., 338 A.2d 437 (1975). Thus, unless timely notice is given, no "right of action" or "entitlement to maintain an action" accrues.

434 A.2d 1376, 1378 (D.C. 1981).

We further noted in Gwinn that the legislative purpose of § 12-309 was "to ensure that District officials would be given prompt notice of claims for potentially large sums of money so that they could: quickly investigate before evidence became lost or witnesses unavailable; correct hazardous or potentially hazardous conditions; and settle meritorious claims." Id.

We are not persuaded by appellants' argument that the statutory purpose of ยง 12-309 can be served just as well by a complaint that is filed within the six-month period for giving notice. Once a complaint is filed, litigation begins. The District is then required to defend itself and to incur certain costs. The notice requirement can give the District the ...


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