 

In the Missouri Court of Appeals
Eastern District

DIVISI()N FOUR
RHONDA POTTS, ) No. ED1039l8
)
Appellant, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. )
) Honorable Jnlian L. Bush
CITY OF ST. LOUIS, )
)
Respondent. ) FILED: September 27, 2016
Introduction

Appellant Rhonda Potts (“Potts”) appeals from the judgment of the trial court granting
summary judgment for Respondent City of St. Louis (“City”) on her claim for damages suffered
after a fall on a city sidewalk. The trial court found that Potts did not provide the City adequate
notice of her injuries as required by Section 82.210,l which defeated her claim. Potts contends
that the notice she provided the City substantially complied With the statute’s notice
requirements Because we cannot conclude on the facts provided that Potts’s notice was
deficient as a matter of law, we reverse the judgment of the trial court and remand for a hearing

under the procedure prescribed by T'ravis v. Citv of Kansas Citv, 491 S.W.Zd 521, 523*24 (Mo.

 

banc 1973).

 

' All statutory references are to RSMo (2000).

 

F actual and Procedural Historv

Potts severely injured her right foot during a fall on a city sidewalk Pursuant to Section
82.2]0, Potts’s attorney sent a letter to the l'vlayor of St. Lou_is, Within the statutory timeframe,
stating in part:

This letter is written pursuant to §82.210 R.S.Mo., §'77.600 R.S.Mo. and all other

Missouri Statutes and is to place the City of St. Louis on notice of its

responsibility for injuries sustained by Rhonda Potts on June 14, 20l 3. Ms. Potts

was injured when she fell on the sidewalk/curb area outside of St. Louis Loan and

Jewelry located at 2906 Union Blvd. in the City of St. Louis. lt is the position of

my client that the City of St. Louis is responsible for the damage she has suffered

as a result of the above incident. lt is her intention to assert a claim for said

damages against the City of St. Louis.

Over a year later, Potts sued the City to recover damages for her injuries. Potts’s petition
alleged that she sustained severe injuries when she tripped and fell on an allegedly uneven city
sidewalk. The City raised as an affirmative defense Potts’s failure to comply vvith Section
82,210, contending that she did not provide adequate Written notice of her injuries within the
required statutory timeframe.

After substantial discovery, the City moved for summaryjudgment on its affirmative
defense of ineffective notice. The City argued that Potts’s notice was deficient because it failed
to describe the circumstances of her injury in that the letter did not inform the City of any
defective condition on or near the city sidewalk. The City asserted in its Statement of
Uncontroverted Materiai Facts that the population of the City of St. Louis exceeded 100,000
inhabitants, that Potts’S petition alleged that her injuries were caused by the defective condition
of a city sidewalk, and that Potts’s Section 82.210 notice did not describe the dangerous or
defective condition of the city sidewalk. ln addition to other attachments, the City included

affidavits in its motion for summary judgment from a legal investigator and a street inspector

involved with Potts’s case. The affidavit of the legal investigator stated that the City received

 

Potts’s notice, that Potts refused to provide a statement in the claims process, and that the legal
investigator was unable to determine if the City was liable for Potts’s claim, The affidavit of the
street inspector stated that he inspected the sidewalk at 2906 Union Boulevard after Potts filed
her petition, and lie was unable to determine the cause of her fall. The reasons for the inability of
the legal investigator to determine the City’s liability on Potts’s claim and the inability of the
street inspector to ascertain the cause of Potts’s injury were not included in the City’s Statement
of Uncontroverted Material Facts.

Potts countered that the liberal requirements as to the contents of the notice were satisfied
because the letter naturally pointed investigators to the precise location of the city sidewalk in
front of 2906 Union Boulevard. Potts asserted as an additional uncontroverted material fact that
the City sent her attorney a letter denying liability for her injuries.

The trial court granted summary judgment for the City, finding that Potts’s letter did not
provide the City with adequate notice of the circumstances of her injury as required by statute,
and was therefore a bar to her claim. Specifically, the trial court determined that the notice
informed the City that it was responsible for the injury Potts suffered “when she fell on the
sidewalk/curb area, but the city was not advised of the circumstances of the fall, such as she fell
because of the defective condition of the city’s sidewaik, or because she was hit by the fire
department while it was answering a call, or because a city employee punched her in the nose.”
As a result, the trial court reasoned that the City would not know if it should inspect the
sidewalk, interview the fire department, or interview violent city employees The trial court
concluded, “[T]he notice fails to point the city in the right direction. (Aithough most sensible
people would be abte to make a pretty good assessment as to the most fruitful place to begin.)

And so it is inadequate.”

 

Accordingly, the trial court entered summary judgment in favor of the City on Potts’s

claim. This appeal follows.
Points on Appeal

ln her sole point on appeal, Potts argues that the trial court erred in entering summary
judgment in favor of the City because she provided sufficient notice to the City of her claim as
required by Section 82.210, in that her letter adequately described the circumstances of her
injnry.

Discussion
A. Standard of Review

The decision to grant summary judgment is a question of law and, therefore, is reviewed
de novo. Highfill v. Hale, 186 S.W.3d 277, 280 (Mo. banc 2006) (citing ITT Commercial

Finance Corp. v. Mid-America Marine Supnlv Corn., 854 S.W.2d 371, 376 (Mo. banc 1993)).

 

Sumrnary judgment is proper where the movant establishes that there is no genuine dispute as to
the material facts and that the movant is entitled to judgment as a matter of law. ll"l:

Commercial Finance Corp., 854 S.W.Qd at 378. A defending party asserting a motion for

 

summary judgment may establish a right to judgment by showing “that there is no genuine
dispute as to the existence of each of the facts necessary to support the movant’s properly-
pieaded affirmative defense.” I_d. at 381. Once the right to summary judgment is established, the
non-movant must demonstrate “that one or more of the material facts shown by the movant to be
above any genuine dispute is, in fact, genuinely disputed.” 1511 This Court will view the record
in the light most favorable to the party opposing summary judgment ld_. at 376. We will also

draw all reasonable inferences in favor of the non-movant. l_d.

 

B. Adeguacy of Notice
Section 82.210 provides:

No action shall be maintained against any city of this state which now has or may

hereafter attain a population of one hundred thousand inhabitants, on account of

any injuries growing out of any defect in the condition of any bridge, boulevard

street, sidewalk or thoroughfare in said city, until notice shall first have been

given in writing to the mayor of said city, within ninety days of the occurrence for

which such damage is claimed, stating the place where, the time when such injury

was received, and the character and circumstances of the injury, and that the

person so injured will claim damages therefor from such city. (Ernphasis added)

Accordingly, the plain language of Section 82.2102 contemplates that a claimant asserting
a defect in a city sidewalk should provide written notice to the mayor of the city within ninety
days of the occurrence of the claimant’s injury, The requirements as to the timing, form, and
presence of notice are a condition precedent to a suit and substantial compliance will not suffice.
Yg Williams v. City of Kansas City, 782 S.W.2d 64, 67 (Mo. banc 1990). The plain language of
Section 82.210 also contemplates that the content of the notice should inciude the following: (l)
where the injury occurred, (2) when the injury occurred, (3) the character and circumstances of
the injury, and (4) that the person injured will state a claim for damages against the city. Unlike
the obligations relating to the timing, form, and presence of notice, the requirements pertaining
to the content of the notice “must be construed strictly against the municipality and liberally in
favor of [the claimant] with the result that substantial compliance is sufficient.” w Kirkpatrick

v. City ofGlendale, 99 S.W.3d 57, 60 (Mo. App. E.D. 2003) (citing Jones v, City ofKarrsas

M, 643 s.w.zd 263, 269 (Mo. App. w.o. 1982)).

 

2 There are four notice-of-clailn statutes: Section 77.600 (applicable to third class cities); Section 79.480 (appiicable
to fourth class cities); Section 81.060 (applicab|e to special charter cities with a population of 500 to 3,000
inhabitants); and Section 82.210 (applicable to cities with a population of at least 100,000 inhabitants). Findley v.
City of Kansas City, 782 S.W.2d 393, 394 FNl (Mo. banc i990). Although Section 82.210 applies to the City
because of its population size, we cite to cases interpreting these other notice-of-claim statutes as they contain the
same requirements for a notice’s content

 

The City has the burden of demonstrating ineffective notice under the circumstances E
Robinson v. City of Kansas Citv. 451 S.W.3d 315, 318-19 (Mo. App. W.D. 2014). If the City is
unsatisfied with the adequacy of the content of the notice and contends that the notice’s content
did not substantiaily comply with Section 82.210, the proper procedure for the City to follow is

to request the trial court for a Travis hearing. w Kieffer v. City of Berkelev, 508 S.W.Zd 295,

 

296-»97 (Mo. App. E.D. 1974). w, gg., lone_s, 643 S.W.Qd at 269.

In M_i§, the claimant’s notice to the city incorrectly stated, by five days, the date that
the claimant suffered injuries 491 S.W.Zd at 522. The TL\/is court rejected a requirement of
strict adherence to Section 82.2l0 as to contents of the notice, and it determined that substantial
compliance with Section 82.210 would suffice with the result that the five-day variance between
the notice and the evidence was not necessarily fatal. § at 523-24. To determine the question
of substantial compliance, the M court remanded, With the instruction that if “the
municipality believes that the content of the notice as to time of injury (or other matters) was so
misleading as to have affected its legitimate right to fully investigate the occurrence and that its
ability to defend against the claim has thus been limited or prejudiced, such facts should be
presented to the trial court. Thereafter, a ruling as to whether or not the notice met the intent and
purpose of the statute could be made after a hearing thereon.” ch at 524.

The Supreme Court of Missouri in Lewis v. Citv of Marceline further clarified :fravj§.

934 S.W.Zd 280, 282-83 (Mo. banc 1996). In Lewis, the claimant’s notice stated “that she also

 

fell in a hole in front of her house at 227 N. College back in May of 1990 damaging her ankle.”

ld_. at 281. ln interpreting Travis, the court Stated that the notice must be “sufficiently certain and

 

definite that, with the assistance of the notice, the city officers may make an investigation and

ascertain the truthfulness or the falsity of the statements Contained in the notice.” I_d. at 282

 

 

(citing Travis, 491 S.W.2d at 523). Accordingly, if the municipality contends that the content of
the notice was so misleading and deficient as to have affected its ability to exercise its right to
investigate the occurrence, and its ability to defend against the claim is limited or prejudiced as a

consequence of the content of the notice, it must present these facts to the trial court. L& (citing

Travis, 491 S.W.Zd at 523).

 

 

Applying Travis, the Lewis court found that the notice did not fail as a matter of law to
describe the place where the injury occurred and the character and circumstances of the injury.
lc_lj at 282. Instead, the court stated that the city, on remand, may request the trial court to

conduct a Travis hearing on the sufficiency of the notice. idl At a Travis hearing, the trial court

 

should determine “whether the facts provided by [claimant] allowed the City officers to make an
investigation and ascertain the truthfulness or falsity of the statements contained in the notice.”

lt_l_. at 282~83 (citing Travis, 491 S.W.2d at 523). Additionally, the trial court should determine

 

“whether the content of the notice was so misleading as to have affected the City’s right fully to
investigate and whether its ability to defend against {claimant’s] claim was limited or prejudiced
as a consequence of the content of the notice.” l_d_. at 283 (citing Teris, 491 S.W.2d at 524).

On appeal, Potts argues that the notice she provided to the City sufficiently described the
circumstances of her injury as to comply with the liberal notice requirements in that the letter
provided sufficient information to enable city officers to make a full investigation of the incident.
The City, in contrast, maintains that Potts’s letter is facially deficient and is similar to the
insufficient notices provided to the respective cities in Lvons v. City of St. losenh, 87 S.W. 588
(Mo. App. W.D. 1905) and Quinn v. Graham, 428 S.W.2d 178 (Mo. App. S.D. 1968).

ln l_syg§, the claimant’s notice to the city provided that “[s]aid injuries were sustained by

me while walking upon the sidewalk of said city at the intersection of Dewey avenue and Louis

 

street . . .” 87 S.W. at 588. ln finding the notice insufficient, the court determined that it
presented no information as to the circumstances of the claimant’s injury because “people are
injured from so many different causes while walking upon sidewalks that the attention of the city
cannot be said to have been directed to any particular one.” l_dl at 589.

In M, the notice at issue stated, “{W]hiie walking on the sidewalk located on
Chestnut Street just West of the intersection of Chestnut Street and River Road, [the claimant]
slipped causing her to immediately fall violently upon the sidewalk.” 428 S.W.Zd at 180. ln
finding that the notice was insufficient to both describe the circumstances of the claimant’s
injury and the location of the incident, the court stated that the record was “wholly void of any
reference to or suggestion that any defect or negligent act of the city caused or produced the fall
‘upon the sidewalk.”’ § at 185-186.

Relying on Lng§ and QuiM, the trial court ruled that Potts’s notice did not inform the
City of its misdeed or wrongful act that provided a basis for her claim, and so therefore the

notice was inadequate as a matter of law. However, we note that Travis, rather than Lyons or

 

M, provides the proper framework for analyzing the sufficiency of Potts’s notice. §
L_ev_v_is, 934 S.W.2d at 282 (declaring that the trial court should have relied upon ij;rp “only to
the extent it does not conflict with the test expressed in TL\/is.”). Under I_M, we cannot
conclude on the facts provided that Potts’s notice was deficient as a matter of law.

Potts’s letter to the Mayor of St. Louis provided the date and location of her incident, as
well as her intention to state a claim against the City for damages Potts’s notice also identified
that she personally suffered injuries and that she sent the notice pursuant to Section 82.210 and

other l\/lissouri statutes requiring notice to the City of her claim. ln regards to the circumstances

 

of Potts’s injury, the letter provided that she “was injured when she fell on the sidewalk/curb
area.”

The trial court reasoned that Potts’s notice did not inform the City whether her injury was
due to the defective condition of a city sidewalk, due to the negligent operation of a city
firetruck, or due to an assault by a violent city employee Section 82.210, by its plain language,
only applies to “injuries growing out of any defect in the condition of any bridge, boulevard,

street, sidewalk or thoroughfare”3

of a city. Because Potts’s letter declared it was to serve as
notice pursuant to Section 82.210 and other notice-of-claim statutes, the letter necessarily implies
that Potts’s injury was the result of a “defect” or “unsafe condition.” l-lere, Potts’s notice
specified that she sustained injuries after a “fall on a sidewalk/curb,” and thus her notice informs
the City that the defective or unsafe condition of the “sidewall</curb area” injured Potts outside
of 2906 Union Boulevard.

As a result, Potts’s notice, albeit potentially vague and misleading, provides some
information pertaining to the circumstances of her injury. Notices that are factually incorrect, are
vague and indefinite, or are partially incomplete may be sufficient to notify the City under
TLvis. § M, 934 S.W.2d at 282-83; Kirkpatrick, 99 S.W.3d at 60 (reversing summary
judgment when the city did not show it was prejudiced by the claimant’s failure to include an
express claim for damages in his notice). S_ee, e_.g_., L)M, 643 S.W.2d at 269-70. However, the
trial court must make this determination after conducting an evidentiary hearing Lwis, 934
S.W.2d at 282~83. We are unwilling to hold, as a matter of law, that Potts’s notice was so vague

or indefinite as to deprive the City of effective notice and prejudice its ability to defend against

Potts’s claim, without an actual showing of those facts to the trial court. lndeed, the trial court

 

3 Sections 77.600, 79.480, and 81 .060 require notice for “any injuries growing out of any defect or unsafe condition
of or on any bridge, boulevard, street, sidewalk or thoroughfare in said city.”

9

 

seems to suggest as much with its observation that although the notice failed to point the city in
the right direction _ “most sensible people would be able to make a pretty good assessment as
to the most fruitful place to begin.”

The record also shows that the City did not provide the trial court with any
uncontroverted material facts establishing that the content of Potts’s notice was so vague or
misleading as to hinder, prejudice, or limit the City’s investigation of her claim in any way. The
affidavits provided by the City in support of its motion for summary judgment contain very brief
assertions that a legal investigator and a street investigator were unable to determine the liability
of the City or the cause of Potts’s fall. Neither of these affidavits suggest that the City was
unable to investigate Pott’s claim due to inadequate notice_but only that they were unable to
determine if the City could be liable. We further note that the City did not include these claims
in its Statement of Uncontroverted Material Facts. Even if not controverted by the evidence
provided by Potts, these specific factual allegations were contested by the parties. ln
determining if a party establishes a right to judgment as a matter of law, we will not rely on as
“undisputed” such material facts that are not identified in a statement of uncontroverted material
facts. § Metro. Nat’l Bank v. Commonwealth Land Title lns. Co., 456 S.W.3d 61, 67-68 (Mo.
App. S.D. 2015); Svngenta Crop Prot., lnc., v. Outdoor Eduip. Co., 241 S.W.3d 425, 428~29
(Mo. App. E.D. 2007). Further, the affidavits provided by the City require us to draw an
inference in its favor that Potts’s notice impeded the ability of the City to effectively investigate
her claim. While a trial court may reasonably draw such an inference following an evidentiary
hearing, such an inference could not be properly drawn in the underlying summary judgment

proceeding given the record before us.

10

 

When some form of written notice is provided to the mayor during the statutory timeline,
courts have ruled that the provided notice substantially complied with the notice-of-claim
statutes absent a showing of prejudice to the municipality S_ee, gg_., M, 934 S.W.Zd at 282;
Kirkpatrick, 99 S.W.Bd at 60; JOM, 643 S.W.Zd at 270.

The municipality may challenge the notice as statutorily deficient, and the proper forum
to resolve that challenge is a l`rayFi§ hearing We are not persuaded that the summary judgment

proceedings met the requirements of the Travis hearing as clarified by the Supreme Court in

 

vais. A IraLis hearing Would provide Potts the opportunity to inquire of the street inspector or
city investigator how Potts’s letter affected their ability to investigate the occurrence and defend
against Potts’s claim. Critically, the record before us reveals that such an inquiry did not occur
in the summary judgment proceedings

Accordingly, we remand to the trial court for an evidentiary hearing on whether the
content of Potts’s notice was so vague or misleading that it affected the City’s right to fully
investigate the occurrence and thereby prejudiced or limited the ability of the City to defend
against her claim.

Conclusion
The judgment of the trial court is reversed, and we remand for a m hearing and other

action consistent with this opinion.

rla/raw

KBRT s. oD’ENWALD, rude

James M. Dowd, P.J., concurs.
Gary M. Gaertner, Jr. J., concurs.

11

 

