      MEMORANDUM DECISION
                                                                        Jan 28 2016, 8:33 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Matthew J. McGovern                                      Liberty L. Roberts
      Anderson, Indiana                                        Church Church Hittle & Antrim
                                                               Fishers, Indiana
      Daniel J. Tuley
      Tuley Law Office
      Evansville, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Susan F. McCall,                                         January 28, 2016

      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               82A01-1507-CT-765
              v.                                               Appeal from the Vanderburgh
                                                               Circuit Court.
      City of Washington,                                      The Honorable David D. Kiely,
                                                               Judge.
      Appellee-Defendant.                                      Cause No. 82C01-1411-CT-5309




      Friedlander, Senior Judge

[1]   Susan McCall appeals the trial court’s grant of the City of Washington’s motion

      for summary judgment. Concluding that summary judgment was proper, we

      affirm.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CT-765|January 28, 2016     Page 1 of 8
[2]   Susan presents two issues, which we consolidate and restate as: whether the

      trial court erred by granting summary judgment for the City of Washington.


[3]   On January 15, 2013, Susan was attending an event being held at Our Lady of

      Hope Catholic Church in Washington, Indiana. On her way to the church,

      Susan tripped and fell on the sidewalk adjacent to the church’s property. As a

      result of her fall, Susan suffered injuries that required hospitalization. On

      January 16, 2013, Scott McCall, a relative of Susan’s, spoke with a

      representative of the church who informed him that the church was not

      responsible for the upkeep of the sidewalks and that it is the city’s responsibility

      to repair and maintain the sidewalks. Scott then went to the Mayor’s office

      where he explained that Susan had fallen on a broken sidewalk adjacent to the

      church the previous day, had been injured, and was hospitalized. Scott was

      informed by the Mayor that the church, not the city, was responsible for the

      upkeep of the sidewalks where Susan fell. The Mayor told Scott that it was the

      church’s responsibility to pay any settlement as a result of Susan’s fall, and

      Scott was provided with a copy of the city ordinance concerning sidewalk

      repair. Scott then returned to the church where he was informed that the

      Mayor had contacted them. A representative of the church also told Scott that

      the church would pay Susan’s medical bills. Subsequently, Susan filed suit

      against the Catholic Diocese of Evansville, the church Bishop, and the City of

      Washington. The City filed a motion to dismiss, and Susan filed a response.

      Following a hearing on the matter, the trial court granted the City’s motion to

      dismiss, and this appeal ensued.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CT-765|January 28, 2016   Page 2 of 8
[4]   The City filed a motion to dismiss Susan’s claim pursuant to Indiana Trial Rule

      12(B)(6) based upon its contention that she had failed to comply with the notice

      provision of the Indiana Tort Claim Act (ITCA). In her response, Susan relied

      on Scott’s affidavit as well as other materials, thus converting the City’s motion

      to one of summary judgment. See Ind. Trial Rule 12(B). Accordingly, on

      appeal we will treat the trial court’s dismissal of Susan’s complaint as a

      summary judgment for the City. See Carmeuse Lime & Stone v. Illini State

      Trucking, Inc., 986 N.E.2d 271 (Ind. Ct. App. 2013) (treating motion to dismiss

      as motion for summary judgment where trial court considered evidence outside

      pleading in deciding motion to dismiss).


[5]   On appeal from a grant or denial of summary judgment, our standard of review

      is identical to that of the trial court: whether there exists a genuine issue of

      material fact and whether the moving party is entitled to judgment as a matter

      of law. Winchell v. Guy, 857 N.E.2d 1024 (Ind. Ct. App. 2006); see also Ind.

      Trial Rule 56(C). Appellate review of a summary judgment motion is limited

      to those materials designated to the trial court. Pond v. McNellis, 845 N.E.2d

      1043 (Ind. Ct. App. 2006), trans. denied. All facts and reasonable inferences

      drawn therefrom are construed in favor of the non-movant. Id. Further, we

      carefully review a grant of summary judgment to ensure that a party was not

      improperly denied its day in court. Id. The party appealing the judgment

      carries the burden of persuading the appellate court that the trial court’s

      decision was erroneous. Bradshaw v. Chandler, 916 N.E.2d 163 (Ind. 2009).




      Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CT-765|January 28, 2016   Page 3 of 8
[6]   Compliance with the ITCA is a question of law properly left to the court.

      Brown v. Alexander, 876 N.E.2d 376 (Ind. Ct. App. 2007), trans. denied. A

      judgment based on non-compliance with the ITCA is subject to review as a

      negative judgment, and we will reverse the trial court’s determination only if it

      is contrary to law. Id.


[7]   The ITCA provides that a claim against a political subdivision is barred unless

      notice of the claim is filed within 180 days after the loss occurs. Ind. Code § 34-

      13-3-8 (1998). The notice required by the ITCA consists of a short and plain

      statement of the facts on which the claim is based, including “the circumstances

      which brought about the loss, the extent of the loss, the time and place the loss

      occurred, the names of all persons involved if known, the amount of the

      damages sought, and the residence of the person making the claim at the time

      of the loss and at the time of filing the notice.” Ind. Code § 34-13-3-10 (1998).

      Further, the notice of claim is required to be in writing and delivered in person

      or by registered or certified mail. Ind. Code § 34-13-3-12 (1998). Not all

      failures to comply with the requirements of these statutes, however, have

      proven fatal to a claim; in certain cases non-compliance has been excused based

      on theories of substantial compliance, waiver, and estoppel. City of Tipton v.

      Baxter, 593 N.E.2d 1280 (Ind. Ct. App. 1992).


[8]   Susan concedes that she did not file a written notice of her claim as required by

      Indiana Code section 34-13-3-12 but contends that she substantially complied

      with the notice requirements of the ITCA such that the trial court’s grant of

      summary judgment for the City is in error. The City responds that Susan did

      Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CT-765|January 28, 2016   Page 4 of 8
       not substantially comply with the ITCA because she did not affirmatively state

       her intent to pursue a claim against it.


[9]    The purpose of the notice requirement is to inform the governmental entity with

       reasonable certainty of the incident and surrounding circumstances so that it

       may investigate, determine its possible liability, and prepare a defense to the

       claim. Fowler v. Brewer, 773 N.E.2d 858 (Ind. Ct. App. 2002), trans. denied. In

       order to constitute substantial compliance, the notice must not only inform the

       governmental entity of the facts and circumstances of the alleged injury but

       must also advise of the intent of the injured party to assert a tort claim. Id. The

       question of substantial compliance with the dictates of the ITCA, although fact

       sensitive, is a question of law for the court. Ammerman v. State, 627 N.E.2d 836

       (Ind. Ct. App. 1994).


[10]   Here, the designated evidence shows that the day after Susan’s fall, Scott

       informed the Mayor of the incident, Susan’s injuries, and her hospitalization.

       As Susan concedes, she did not file a written notice of her claim against the

       City; instead, she relies on Scott’s conversation with the Mayor to serve as her

       notice under the ITCA. Although Scott verbally informed the City in a timely

       fashion of the circumstances of Susan’s fall, there is no evidence that the City

       was given any notice, written or otherwise, of Susan’s intent to take legal

       action. This is not sufficient to fulfill the notice requirement of the ITCA. See

       Rudnick v. N. Ind. Commuter Transp. Dist., 892 N.E.2d 204 (Ind. Ct. App. 2008)

       (holding that although governmental entity knew description of incident, time

       and place of injury, names of persons involved, and claimant’s address, medical

       Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CT-765|January 28, 2016   Page 5 of 8
       expenses and time away from work, claimant did not substantially comply with

       notice requirements of ITCA because governmental entity was not made aware

       of claimant’s intent to sue), trans. denied; Brown, 876 N.E.2d 376 (summary

       judgment for governmental entity affirmed because, although governmental

       entity had knowledge of claimant’s injury, an opportunity to investigate, and

       was at fault for accident, claimant failed to give notice of her claim); Orndorff v.

       New Albany Hous. Auth., 843 N.E.2d 592 (Ind. Ct. App. 2006) (holding no

       substantial compliance with ITCA where governmental entity knew of incident,

       helped police locate witnesses, and discussed possibility of lawsuit in days

       following incident but received no notice of claimant’s intent to pursue legal

       action within 180 days of incident), trans. denied; and McConnell v. Porter Mem’l

       Hosp., 698 N.E.2d 865 (Ind. Ct. App. 1998) (affirming summary judgment for

       hospital where hospital had incident report containing date and time of

       incident, description of incident, witnesses, and name of injured party, but it

       was not advised of injured party’s intent to assert tort claim), trans. denied.


[11]   In the alternative, Susan argues that the City was estopped from asserting her

       non-compliance with the notice provisions of the ITCA because the Mayor

       concealed the City’s liability. The theory of estoppel focuses on representations

       made by the governmental entity or its agents to the claimant, which induce the

       claimant reasonably to believe that formal notice is unnecessary. Brown, 876

       N.E.2d 376. This Court has summarized the requirements for applying the

       estoppel doctrine in the context of the ITCA:




       Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CT-765|January 28, 2016   Page 6 of 8
               [W]hen responsible agents or officials of a city have actual
               knowledge of the occurrence which causes injury and they
               pursue an investigation which reveals substantially the same
               information that the required notice would provide, and they
               thereafter follow a course of action which would reasonably lead
               a claimant to conclude that a formal notice would be
               unnecessary, . . . [and] [i]f the claimant, as a result of such
               municipal conduct, in good faith fails to act, or acts thereon to
               his disadvantage, then an estoppel against the requirement of the
               notice may be said to arise.
       Coghill v. Badger, 418 N.E.2d 1201, 1209 (Ind. Ct. App. 1981). In summary, a

       mere investigation by agents or officials of a governmental entity, by itself, will

       not necessarily produce an estoppel; rather, the estoppel occurs when there is an

       investigation followed by action in relation to the claimant that would lead a

       reasonable person to conclude that further notice is unnecessary. Id.


[12]   Applying these principles to the designated evidence, we conclude the City was

       informed of the time, place, cause, and nature of the accident, as well as the

       general nature of Susan’s injuries. The designated evidence does not

       demonstrate, however, that the City investigated the facts at all, much less to

       determine its liability or to prepare a defense, which is the purpose of the notice

       requirement. See Fowler, 773 N.E.2d 858 (stating that purpose of notice

       requirement is to inform governmental entity of incident so it may investigate,

       determine liability, and prepare defense). Additionally, the designated evidence

       does not establish that after an investigation, the City took action that would

       reasonably lead Susan to conclude that formal notice was unnecessary. At

       most, the designated evidence shows that Scott informed the Mayor of the

       circumstances of Susan’s fall, the Mayor indicated that repair and maintenance
       Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CT-765|January 28, 2016   Page 7 of 8
       of the sidewalk upon which Susan fell is the responsibility of the church, he

       provided Scott with a copy of a city ordinance stating as much, and he stated

       his belief that the City was not liable. Thus, without evidence to show that the

       purposes underlying the notice requirements have been satisfied (i.e.,

       investigation of all the facts to determine liability and prepare a defense) and

       that the City followed a course of action which would reasonably lead Susan to

       conclude that formal notice is unnecessary, the estoppel doctrine is not

       applicable. See Delaware Cnty. v. Powell, 272 Ind. 82, 393 N.E.2d 190 (1979)

       (stating that when acts and conduct of defendant or his agents have established

       that purposes of notice statute have been satisfied, these acts and conduct could

       create estoppel); see also Coghill, 418 N.E.2d 1201 (stating that investigation

       followed by course of action which would reasonably lead claimant to conclude

       that formal notice is unnecessary may create estoppel).


[13]   Susan did not substantially comply with the notice provisions of the ITCA, and

       the evidence did not show that the theory of estoppel was applicable in this

       case. Summary judgment for the City was appropriate.


[14]   Judgment affirmed.


[15]   Bailey, J., and Crone, J., concur.




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