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08/27/90 ANNIE MAE GASKINS v. DISTRICT COLUMBIA

DISTRICT OF COLUMBIA COURT OF APPEALS


August 27, 1990

ANNIE MAE GASKINS, APPELLANT
v.
DISTRICT OF COLUMBIA, APPELLEE

Appeal from the Superior Court of the District of Columbia; Hon. George W. Mitchell, Trial Judge

Rogers, Chief Judge, and Schwelb and Farrell, Associate Judges. Opinion for the court by Associate Judge Farrell. Concurring opinion by Chief Judge Rogers, at 10.

The opinion of the court was delivered by: Farrell

This is an appeal from a January 5, 1989 order of the Superior Court granting the District of Columbia's (District's) motion for summary judgment and dismissing with prejudice appellant's negligence claim against the District. Appellant and plaintiff below, Annie Mae Gaskins, had allegedly been injured when she tripped and fell on an eroded portion of the sidewalk on M Street in Northeast Washington, D.C. Although the trial court did not specify the grounds for its decision, it apparently agreed with the District that Ms. Gaskins had failed to describe the location of the injury with adequate specificity and did not, therefore, meet the notice requirements of D.C. Code § 12-309 (1989). *fn1 Appellant contends that, while the notice she furnished the District may not have identified the place of the injury exactly, precision of that kind is not required by a statute intended to give the District threshold notice of a claim and an opportunity to conduct a reasonable investigation. We agree that the notice was sufficient under the standards enunciated by our decisions, and reverse.

I.

On October 3, 1985, Ms. Gaskins allegedly suffered a broken arm when she tripped and fell on an eroded portion of a sidewalk while walking to a mailbox at the corner of M Street and Bladensburg Road, N.E. On November 6, 1985, Ernest W. Mclntosh, Ms. Gaskins' attorney, notified the Mayor's office of the accident and the District's potential liability. The letter gave Ms. Gaskins' home address and stated that it was "written in compliance with D.C. Code § 12-309 . . . to inform [the District] of the potential liability. . . for a claim against it by Ms. Annie Mae Gaskins." Regarding the location of the accident, the notice stated:

On or about October 3, 1985, during the evening, Ms. Gaskins was going to the mailbox at the corner of M Street and Bladensburg Road, N.E. She tripped over an eroded section of the sidewalk of M street, fell and broke her arm.

The parties agree that the distance between Ms. Gaskins' home and the mailbox in question is approximately 150 feet.

On March 3, 1986, John J. Bourbon, an investigator for the District, sent a letter to attorney McIntosh stating that, after inspecting "the general area near the subject mailbox," he was unable to locate the eroded portion of the sidewalk. He therefore requested that the location of the fall be identified "through proximity to a fixed object." Mr. McIntosh did not respond to this request. *fn2 Gaskins filed suit against the District on September 19, 1988.

II.

As we have repeatedly held, D.C. Code § 12-309 is designed to "(1) protect the District of Columbia against unreasonable claims and (2 to give reasonable notice to the District of Columbia so that the facts may be ascertained and. if possible, deserving claims adjusted and meritless claims resisted." Pitts v. District of Columbia, 391 A.2d 803, 807 (D.C. 1978). "Absent such notice, claims might he brought within the statute of limitations but so long after the event that it [would be] impossible for the District of Columbia to obtain evidence for use in litigation which may result.'" Shehyn v. District of Columbia, 392 A.2d 1008, 1013 (D.C. 1978) (citation omitted). See also Romer v. District of Columbia, 449 A.2d 1097, 1101 (D.C. 1982) (notice requirement allows District to "quickly investigate before evidence bec lost or witnesses unavailable, correct hazardous or potentially hazardous conditions, and settle meritorious claims"); Washington v. District of Columbia, 429 A.2d 1362, 1365 (D.C. 1981) (en banc).

Section 12-309 "is to be strictly construed and compliance with notice requirement is mandatory." Id. (citation and internal quotation marks omitted). Since notice under the statute is a "condition precedent" to filing suit against the District, we have held that it is not given merely by the filing of a complaint within the six-month statutory period. Campbell v. District of Columbia, 568 A.2d 1076, 1078 (D.C. 1990). On the other hand, "with respect to the details of the statement [giving notice], precise exactness is not absolutely essential," and "liberal construction of the statute's requirements is in harmony with its purpose." Washington, supra, 429 A.2d at 1365 & n.9, 1367-68 n.19 (emphasis in original; citations and internal quotation marks omitted). Notice under the statute need only "furnish [] a reasonable guide for inspection," Dixon v. District of Columbia, 168 A.2d 905, 907 (D.C. 1961), and "provide an early warning to District of Columbia officials regarding litigation likely to occur in the future." Pitts v. District of Columbia, supra, 391 A.2d at 807. As we stated in Washington, supra, in rejecting the District's claim that the notice given there failed the "cause" and "circumstances" requirements:

It may be true that the greater the detail provided in a letter, the more easily the District can identify its nature and decide how best to deploy its limited investigative resources. But the purpose of § 12-309 is not to help the District to evaluate known claims by requiring notice complete enough to state a formal cause of action. The statute, rather, was designed to protect the District of Columbia against unreasonable claims and to give the District officials reasonable notice of the accident so that the facts may be ascertained and, if possible, the claim adjusted. Put another way, § 12-309 was intended solely to insure the District the opportunity for timely access to all relevant facts about a potential claim, in order to protect the District against an unfair advantage by the eventual claimant.

429 A.2d at 1368 (citations and internal quotation marks omitted).

In this case, the District does not dispute the pragmatic purpose of the statute --- to furnish the District with "a reasonable guide for inspection," Dixon, supra, and enable it to "conduct a prompt, properly focused investigation of the claim." Washington, supra, 429 A.2d at 1366 (footnote omitted). The District concedes that Ms. Gaskins' notice met the time, cause and circumstance requirements of the statute, and that it narrowed the location of the alleged accident to a 150-foot stretch of sidewalk along M Street, N.E., leading to a mailbox at the corner of M Street and Bladensburg Road. The District also does not dispute Ms. Gaskins' contention that there was no residence or business facing the sidewalk at the place of the fall by which the accident could be further localized.

The District argues, nevertheless, that the notice did not "describe the situs . . . in such a manner as to reasonably enable the investigating agency to find it," Hurd v. District of Columbia, 106 A.2d 702, 704 (D.C. 1954), because there could have been numerous more or less "eroded" sections of sidewalk in the 150-foot stretch identified, any one of which could have caused plaintiff's fall. *fn3 The notice thus failed, it says, because Ms. Gaskins did not at least specify the section of sidewalk (e.g., eastern or middle third of the 150-foot stretch) where she fell. We conclude, to the contrary, that the notice furnished the required "reasonable guide for inspection," Dixon, supra, sufficient "to protect the District against an unfair advantage by the eventual claimant." Washington, supra.

Assuming there were multiple broken or eroded sections along the 150-foot stretch of sidewalk, even the notice the District concedes would suffice would not have guaranteed discovery of the exact place of fall. Equipped with the notice, however, an investigator could assess the condition of the sidewalk generally and identify those defects mat capable of causing a trip and fall, and so arrive at a reasoned estimate of the District's liability. We think more is not required, otherwise § 12-309, a provision for "early warning . . . regarding litigation likely to occur in the future," Pitts, supra, 391 A.2d at 807, would be a substitute for the precision properly expected in discovery after a lawsuit is filed and would "afford [] the District greater protection than [§ 12-309] was intended to provide." Washington, supra, 429 A.2d at 1368.

In Washington, the plaintiff alleged that the District had failed to maintain the premises where she fell in a safe condition by neglecting to install a proper stairway handrail and to maintain proper lighting. Plaintiff's § 12-309 notice, however, while giving the address of the premises, had failed to say where inside the building the injury occurred, see 429 A.2d at 1371 (Nebeker, J., Dissenting), and contained no mention of the defects alleged to have caused the injury. Id. at 1363-64. *fn4 This court nonetheless upheld the notice as sufficient. In Dixon v. District of Columbia, supra, the notice alleged a fall and injury resulting from a faulty condition in the sidewalk, when in fact the defect was in the adjacent gutter. We upheld the notice, stating that " studied search, instigated by [the plaintiff's] report, could reasonably be expected to have revealed the affected area upon examination of the perimeter of the sidewalk contiguous to the street." 168 A.2d at 907. Similarly, in Stone v. District of Columbia, 99 U.S. App. D.C. 32, 237 F.2d 28 (en banc), cert. denied, 352 U.S. 934, 77 S. Ct. 221, 1 L. Ed. 2d 160 (1956), the plaintiff's notice alleged an accident caused by a defective manhole and cover located, variously, at the northwest and the southwest corner of a named intersection, when in fact the accident had occurred on the northeast corner. In upholding the notice, the court of appeals stated: "Had the report filed by plaintiff's counsel merely referred to 6th and L Streets, S.E., without reference to a specific corner, we think the notice would have been beyond question." Id. at 34, 237 F.2d at 30.

Each of these cases interpreting the requirement of "a reasonable guide for inspection" tolerated inaccuracies or lack of precision in the notice that did not affect its basic adequacy to permit a prompt and focused investigation. *fn5 We hold that the notice in this case was likewise sufficient.

There remains, however, another issue to be resolved. With commendable frankness, the District contends that the sufficiency of the written notice in this (and any) case should stand or fall on the document's contents without regard to later events. It points to our Conclusion in Washington that "he fact that the District investigated the incident as a result of the letter is irrelevant to the question whether the letter itself was 'notice in writing' within the meaning of § 12-309." 429 A.2d at 1367. The District therefore does not urge us to consider the fact that its investigator, acting on Ms. Gaskins' notification, went to the scene of the accident and purportedly could not find the eroded section of sidewalk, then contacted her attorney for further detail but received no answer to his request. Although the District does not argue the point, there is something troublesome about a plaintiff's failure to respond to a reasonable request by the District for follow-up information. In Washington, supra, we held that the description of the accident "provided enough information to enable the District to conduct a prompt, properly focused investigation by contacting the victim (through her attorney) and requesting the names of witnesses [etc.] . . . ." 429 A.2d at 1367 (emphasis added). The underscored language implies that the duty of proper notice may include an obligation to cooperate with reasonable requests for supplemental information. In this case, appellant contends that it is irrelevant that (or why) her counsel failed to answer the investigator's request for additional information; her notice was facially adequate, and the fact that the District professed inability to find the spot bespeaks only a faulty investigation. We are not so complacent, however, about the notion that an attorney may rebuff reasonable requests for further assistance under a statute designed in part to promote "settle[ment of] meritorious claims before complaints are filed." Campbell, supra, 568 A.2d at 1078. *fn6

Nevertheless, on balance we agree with the District that § 12-309 is best interpreted -- and administered -- as limiting the inquiry into compliance to the adequacy of the information furnished in the notice. A contrary rule would tend to involve a threshold requirement of notice in disputes over the reasonableness of the investigation conducted by the District with the information supplied. *fn7 (It likewise, in a case such as this, would demand resolution of subsidiary issues such as whether counsel received the District's letter requesting further detail). In Washington, we rejected the approach of earlier decisions which had measured the degree of needed specificity by reference to subsequent events, in particular the District's success in finding the place of accident. 429 A.2d at 1367 n.19. By "rely solely on the contents of the letter," id. at 1367, we intended to enforce adherence to the requirements of the statute -- already liberally construed. Similar reasoning dictates that we disregard the District's professed lack of success in finding the site armed with notice that, on its face, allows a properly focused investigation. See Dixon v. District of Columbia, supra, 168 A.2d at 907 ("Whether the District learns of the exact location or not, from whatever source, the test [remains whether from the notice itself the District, in the exercise of due diligence] should have been able to locate the offending defect" (emphasis added)).

Because the notice in this case was sufficient under § 12-309, the judgment is Reversed.

ROGERS, Chief Judge, Concurring: In view of our decisions in Washington v. District of Columbia, 429 A.2d 1362 (D.C. 1981) (en banc), and Dixon v. District of Columbia, 168 A.2d 905 (D.C. 1961), I join the majority opinion. M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1970). The effect of our continuing interpretation of the requirements of the notice statute, however, is to undermine the purpose of the statutory requirement that as a prerequisite to filing suit against the District of Columbia it must be given notice, within six months of the injury or damage, "of the approximate time, place, cause, and circumstances of the injury or damage" D.C. Code § 12-309 (1989 Repl.).

In Washington v. District of Columbia, the court stated that D.C. Code 12-309 "was designed to protect the District of Columbia against unreasonable claims and to give the District officials reasonable notice of the accident so that the facts may be ascertained and, if possible, the claim adjusted." 429 A.2d at 1368 (quoting Hurd v. District of Columbia, 106 A.2d 702, 704 (D.C. 1954 which, in turn, was quoting the legislative history of the statute). As the majority states, the adequacy of the notice is to be determined solely on the face of the notice and precise exactness of details is not "absolutely essential." See majority opinion at 4, (supra) (quoting Washington v. District of Columbia, supra, 429 A.2d at 1365 (further citations omitted)). Rather, all that we require is that the notice furnish "a reasonable guide for inspection." Dixon v. District of Columbia, supra, 168 A.2d at 905. *fn1 Here, however, as in Dixon, the District investigator determined that he could not locate the defect in the sidewalk which allegedly caused the injury to the plaintiff and asked plaintiff's counsel to provide further information. Counsel did not, and subsequently filed suit against the District.

Just as the court in Dixon was not troubled by the failure of the plaintiff's counsel to respond to the District's request for additional information, and in the absence of any finding by the trial court that the District's investigator did not exercise due diligence in trying to locate the defect, see Dixon, supra, 168 A.2d at 907 (due diligence standard), the court today holds that the plaintiff's notice was adequate under the statute. The question is adequate for what. The District could not locate the defect; hence, the District could not determine its potential liability; hence, the plaintiff's claim could not be settled without litigation. *fn2

Consequently, it appears that we have reached the point where, even if the written notice is, in fact, inadequate to enable the District's presumably diligent investigator to identify the alleged defect, it is nevertheless legally sufficient and the plaintiff and plaintiff's counsel may ignore, without fear of being barred from filing suit, a request by the District for further information that would enable it to locate the defect. Thus, suits will be filed that might otherwise have been settled since the defect will go undetected -- had it been found the District might have settled the plaintiff's claim and repaired the defect to prevent harm to others. Surely something is amiss.


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