Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

TUCKING v. BOARD OF JEFFERSON COUNTY COMM'RS.

February 16, 1990.

LETTY L. TUCKING, Appellant,
v.
BOARD OF COMMISSIONERS OF JEFFERSON COUNTY, KANSAS, and JEFFERSON COUNTY, KANSAS, Appellees.



*fn1 REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted a motion to publish by an order dated May 15, 1990, pursuant to Rule 7.04 (1989 Kan.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. Annot. 34).

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).

[14 Kan. App. 2d 443]

     

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 Commission:
"June 21, 1988
"Board of Jefferson County Commissioners Oskaloosa, KS 66066
"Re: Letty Tucking, Date of Injuries, Oct. 8, 1986, Place, West side of Jefferson County Courthouse
"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.
"Sincerely, "CHARLES M. TULEY LAW OFFICE, P.A. "by _______________________ "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, stating:
 
"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 dismissed."
  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 12-105b(d).

  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

[14 Kan. App. 2d 444]

      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 prospective

[14 Kan. App. 2d 445]

      or retrospective application. That issue has ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.