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Carr v. Town of Shubuta

February 11, 1999

AGNES CARR
v.
TOWN OF SHUBUTA



The opinion of the court was delivered by: McRAE, Justice

ON PETITION FOR WRIT OF CERTIORARI

DATE OF JUDGMENT: August 28, 1996

TRIAL JUDGE: HON. LARRY EUGENE ROBERTS

COURT FROM WHICH APPEALED: CLARKE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

¶1. This appeal evolves from a personal injury action filed by the appellant Agnes Carr against the Town of Shubuta because of injuries she received as a result of an alleged fall on a sidewalk constructed and maintained by the municipality. Summary judgment was granted based upon Carr's failure to comply with the notice of claim provisions of Miss. Code Ann. § 11-46-11 (Supp. 1998) of the Mississippi Tort Claims Act. Finding that Carr did in fact substantially comply with the notice of provisions of the Act, we reverse the judgment of the Court of Appeals and remand.

FACTS

¶2. On October 13, 1993, Agnes Carr was injured when she slipped and fell on a public sidewalk in Shubuta, Mississippi, sustaining a broken and dislocated elbow requiring corrective surgery. Shortly after the incident a city police officer prepared an incident report which was turned in and submitted to the city clerk. On October 19, 1993, Carr signed a "Report of Public Liability" at the office of the city clerk. *fn1 This document, provided by the city, contained all the information required by the notice of claim provisions of § 11-46-11, except the amount of damages sought, although her injuries were described generally, i.e. dislocated elbow, chipped bone, pulled ligament, loose teeth, scratches, and broken glasses. The notice also gave the name of her primary physician. Her monetary damages were unknown at the time as her medical treatment was ongoing. Correspondence between the city and its insurer, the Mississippi Municipal Liability Plan MMLP, obtained during discovery, indicates that Carr continued to inform the city of her condition. *fn2 It is uncontroverted that the mayor ultimately received notice of the accident and injury shortly afterward. There were numerous contacts, oral and written, between the MMLP adjuster and Carr and later Carr's counsel. A thorough investigation of the incident was promptly conducted by the city and the adjuster. The adjuster obtained copies of Carr's medical records through a release she timely executed in favor of the MMLP who by this time was acting on behalf of Shubuta and was actively engaged in settlement negotiations.

¶3. Settlement negotiations broke down, and on December 2, 1994, one year and ninety days after her fall, Carr filed the Circuit Court of Clarke County a personal injury lawsuit against the Town of Shubuta alleging that the town had failed to exercise ordinary and reasonable care in inspecting and maintaining the sidewalk. On December 1, 1994, her counsel had sent a letter to the city notifying same of his intent to file suit.

¶4. On December 30, 1994, the Town of Shubuta filed its answers and defenses to Carr's complaint and denied negligence on the part of the town and affirmatively asserted that Carr's claim was barred by the notice of claim provision of the Tort Claims Act, and secondly, that the claim was barred because the defect in the sidewalk was open and obvious. In granting summary judgment in favor of the Town of Shubuta, the trial court found that Carr had failed to comply with the notice requirements of Miss. Code Ann. § 11-46-11 (Supp. 1998), and did not address the "open and obvious" issue. *fn3

ΒΆ5. The Court of Appeals, justifiably relying on previous opinions of this Court requiring strict compliance with the notice of claim provisions of the Act, affirmed the judgment of the trial court and denied the petition for ...


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