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11/10/92 CATHERINE HARDY v. DISTRICT COLUMBIA

November 10, 1992

CATHERINE HARDY, APPELLANT
v.
DISTRICT OF COLUMBIA, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Peter H. Wolf, Trial Judge)

Before Rogers, Chief Judge, Sullivan, Associate Judge, and Newman, Senior Judge.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Appellant Catherine Hardy appeals from the grant of summary judgment to appellee District of Columbia and dismissal of her case on the ground that the trial Judge erred in ruling that her letter of notice to the Mayor under D.C. Code § 12-309 (1989 Repl.) failed to provide sufficient information regarding the location of the accident. We reverse.

I

Appellant Catherine Hardy, through counsel, sent the Mayor of the District of Columbia a letter pursuant to D.C. Code § 12-309 *fn1 that stated in pertinent part:

At approximately 9:30 p.m. on Saturday, August 29, 1987, Ms. Hardy was proceeding on foot on the side walk in close proximity to 1814 Q Street, S.E. As she stepped onto a water meter cover in the sidewalk, the cover "flipped," causing Ms. Hardy to fall, thereby sustaining injuries to her head and the right side of her body.

Thereafter Ms. Hardy filed a complaint alleging negligence by the District of Columbia and seeking compensatory damages, costs and interest. The District filed a motion to dismiss the complaint, or in the alternative for summary judgment, on the ground that the letter did not sufficiently describe the place and circumstances of Ms. Hardy's injury as required by § 12-309. The trial Judge initially denied the motion for summary judgment without prejudice. On the first day of trial, however, after determining that the meter cover on which Ms. Hardy tripped was located between 1806 and 1804 Q Street, S.E., the Judge reconsidered his ruling and granted the District's motion for summary judgment on the ground that Ms. Hardy had failed to comply with § 12-309 because her letter had not adequately specified the place of her injury, and dismissed the case.

II

On appeal Ms. Hardy contends that the trial Judge erred because the information provided in her letter was sufficient to allow the District to conduct a reasonable investigation that could have identified the correct meter cover, and the Judge's view that greater specificity was required is contrary to § 12-309 and the decisions of this court. The District responds that Ms. Hardy's "notice was inaccurate and affirmatively misleading," and that until her deposition was taken more than three years later, "the District could reasonably believe it [the offending meter cover] was the cover at 1814 Q Street, S.E., or perhaps the one next to it at 1810 Q Street, S.E."

The requirement under § 12-309 that a letter be sent to the Mayor of the District of Columbia is mandatory as a prerequisite to filing suit against the District. Pitts v. District of Columbia, 391 A.2d 803, 807 (D.C. 1978) (citation omitted). Being in derogation of the common law, the statute is strictly construed. Romer v. District of Columbia, 449 A.2d 1097, 1101 (D.C. 1982). However, the letter's required contents, such as "approximate . . . place" of injury, are to be interpreted liberally. Washington v. District of Columbia, 429 A.2d 1362, 1365 n.9 (1981) (en banc) (citation omitted).

Generally stated, the purposes of § 12-309 are (1) to allow the District to investigate potential claims so that evidence may be gathered while still available, for example before the relevant sidewalk is paved over or the meter cover fixed, (2) to enable the District to correct defective conditions, thus increasing public safety, and (3) to facilitate settlement of meritorious claims and resistance of frivolous ones. See, Pitts, supra, 391 A.2d at 807 & n. 4 (citations omitted); Gaskins v. District of Columbia, 579 A.2d 719, 721 (D.C. 1990) (citations omitted); Shehyn v. District of Columbia, 392 A.2d 1008, 1013 (D.C. 1978) (citing H.R. Rep. No. 21010, 72d Cong., 2d Sess. 1-2 (1933)). A letter notifying the Mayor under § 12-309 must provide enough information that the District "in the exercise of due diligence, should have been able to locate the offending defect." Dixon v. District of Columbia, 168 A.2d 905, 907 (D.C. 1961). See also Hurd v. District of Columbia, 106 A.2d 702, 704 (D.C. 1954) ("claimant . . . should describe the situs of the injury in such a manner as to reasonably enable the investigating agency to find it"); Gaskins, supra, 579 A.2d at 721 ("notice under the statute need only 'furnish[ ] a reasonable guide for inspection,' . . . and 'provide an early warning to District . . . regarding litigation likely to occur in the future'") (citations omitted); Dixon, supra, 168 A.2d at 907 ("a reasonable guide for inspection," also citing Stone, infra, and Hurd, supra, with approval); Stone v. District of Columbia, 99 U.S. App. D.C. 32, 34, 237 F.2d 28, 30 (1956) (en banc) (notice need only "pin-point[] the locale with sufficient accuracy so that an investigation starting from the notice could reasonably be expected to uncover the available information"). Thus, the notice must be sufficient to enable the District to begin an investigation, which may later require further information from the potential plaintiff or the plaintiff's attorney. *fn2

The en banc court explained in Washington, supra, that:

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.'" Hurd, supra at 704 (footnote omitted) (quoting legislative history). Accord, Pitts, supra at 807; Stone, supra at 33, 237 F.2d at 29. Put another way, § 12-309 was intended solely to assure the District ...


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