*fn1 REPORTER'S NOTE: Previously filed as an unpublished
opinion, the Supreme Court granted a motion to publish by an
order dated May 15, 1990, pursuant to Rule 7.04 (1989 Kan. Ct. R.
Letty L. Tucking appeals the district court's dismissal of
her personal injury action against the Board of County
Commissioners of Jefferson County and Jefferson County (County)
for Tucking's failure to meet the notice requirements of K.S.A.
1989 Supp. 12-105b(d).
Letty L. Tucking fell on a sidewalk outside the Jefferson
County Courthouse on October 8, 1986. On June 21, 1988, her
lawyer sent the following letter to the Jefferson County
"June 21, 1988
"Board of Jefferson
Oskaloosa, KS 66066
"Re: Letty Tucking, Date of
Injuries, Oct. 8, 1986,
Place, West side of
"Dear County Commissioners:
"This will notify you that we have been retained to
represent the client named above. All further
communications concerning this case should be
directed to our office. If you have liability
insurance you should be certain that the injury is
promptly reported to your insurance company and that
a copy of this letter be furnished to them. If you do
not have liability insurance, you should either
contact me or have your attorney do so with the view
to try and settle this matter without the necessity
of expensive litigation.
"CHARLES M. TULEY LAW OFFICE, P.A.
"Charles M. Tuley"
On October 6, 1988, 107 days after the notice was sent, Tucking
filed a lawsuit in district court against the County. Her
petition did not allege that she gave notice to the County
pursuant to 12-105b. The petition was served on the County on
October 10, 1988. The County answered on November 1, 1988,
"5. For further and separate defense, these
defendants allege that a condition precedent to suit
is the filing of a claim pursuant to K.S.A. 12-105(b)
[sic]. No such claim was filed by the plaintiff. As
a consequence thereof this court lacks jurisdiction
of plaintiff's suit and plaintiff's action should be
The County filed a motion to dismiss on December 8, 1988,
alleging that Tucking failed to comply with 12-105b(d). The
district court dismissed Tucking's action, finding the letter
sent June 21, 1988, failed to comply with the requirements of
K.S.A. 1989 Supp. 12-105b(d), enacted at L. 1987, ch. 353, § 9,
establishes a uniform written notice requirement for any claim
against a municipality which could give rise to an action under
the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. In
determining whether the notice given meets the statutory
requirements, we must determine legislative intent and construe
the meaning of the statute. "Interpretation of a statute is a
question of law." Director of Taxation v. Kansas Krude Oil
Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984). "The
construction of a written instrument is a question of law, and
the instrument may be construed and its legal effect determined
by an appellate court." Kennedy & Mitchell, Inc. v. Anadarko
Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988). The appellate
court's review of questions of law is unlimited. Hutchinson
Nat'l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299,
rev. denied 243 Kan. 778 (1988).
K.S.A. 1989 Supp. 12-105b(d) provides, in part: "Any person
having a claim against a municipality which could give rise to an
action brought under the Kansas tort claims act shall file a
written notice as provided in this subsection before commencing
such action." As Tucking correctly notes, 12-105b is not part of
the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. It appears
under article 1, general 5 provisions, of chapter 12, cities and
municipalities. The provision does apply to counties. K.S.A.
12-105a(a) broadly defines "Municipality" to include counties.
K.S.A. 1989 Supp. 12-105b(d) took effect July 1, 1987. From
July 1979 until July 1987, there was no express requirement that
notice be given to a governmental entity before suit was filed.
In Quigley v. General Motors Corp., 647 F. Supp. 656, 661 (D.
Kan. 1986), the court held that the then applicable subsections
of 12-105b did not require tort victims to give notice of claims
before filing suit against a municipality. Presumably, the
legislature was responding to Quigley when it enacted K.S.A.
1989 Supp. 12-105b(d).
Prior to 1979 when it was repealed, a different notice
requirement was found in K.S.A. 12-105. In some form that statute
had been on the books since 1903. There were minor differences in
statute number, which cities it applied to, and the time limits.
The basic requirements remained the same until its repeal.
The only case interpreting 12-105b(d) is Stevenson v. Topeka
City Council, 245 Kan. 425, 781 P.2d 689 (1989). The issue in
the Stevenson case was whether the statute should be given
or retrospective application. That issue has ...