MAINE SUPREME JUDICIAL COURT                                                       Reporter of Decisions
Decision: 2016 ME 56
Docket:   Yor-15-219
Argued:   February 9, 2016
Decided:  April 14, 2016

Panel:        SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
              HUMPHREY, JJ.



                                     JOHN E. DESCHENES

                                                   v.

                                      CITY OF SANFORD

HUMPHREY, J.

         [¶1] In this case, we hold that a person cannot substantially comply with the

notice requirement of the Maine Tort Claims Act, 14 M.R.S. §§ 8101-8118 (2015),

without filing some type of written notice within 180 days after a claim accrues

against a governmental entity.

         [¶2] John Deschenes appeals from the entry of a summary judgment by the

Superior Court (York County, Fritzsche, J.) in favor of the City of Sanford in his

suit for personal injuries resulting from his fall down stairs at City Hall.1

Deschenes contends that the court erroneously concluded that he failed to

substantially comply with the notice requirement of the Maine Tort Claims Act,


   1
     Subsequent to the events involved in the suit, the Town of Sanford was reincorporated as the City of
Sanford. The change does not affect our disposition of this appeal. For clarity, we refer to the
municipality as “the City” in this opinion.
2

14 M.R.S. § 8107 (2015).       Because we now conclude that a person cannot

substantially comply with the Act if he provides only oral notice of his claim, the

court did not err in entering a summary judgment for the City, and we affirm.

                                I. BACKGROUND

      [¶3] The following facts, viewed in the light most favorable to Deschenes,

are drawn from the statements of material facts and, except where otherwise

indicated, are undisputed. See Budge v. Town of Millinocket, 2012 ME 122, ¶ 12,

55 A.3d 484; N.E. Ins. Co. v. Young, 2011 ME 89, ¶ 5, 26 A.3d 794.                On

February 17, 2012, Deschenes visited Sanford City Hall with his daughter to obtain

a copy of her birth certificate. As he descended a stairway leading to the City

Clerk’s office, he tripped and fell forward down several steps, landed on the

concrete floor at the base of the stairs, and slid into the glass doors of the office.

When City employees, including the Clerk, responded to the sound of the fall,

Deschenes informed them that he had fallen down the stairs. The employees

assisted Deschenes into the Clerk’s office and rendered initial first aid. In response

to a 9-1-1 call from the Clerk’s office, a Sanford police officer arrived and called

for emergency medical assistance.

      [¶4] Deschenes asserts that, around this time, someone in the Clerk’s office

asked him to sign an insurance form; although the City disputes that this occurred,

it is undisputed that Deschenes understood that any form he filled out “did not
                                                                                    3

express any intention on his part to make a claim against anybody, but merely

provided information regarding his insurance that [Sanford] needed to bill his

insurer for his transport by the Rescue ambulance.”

      [¶5] As Deschenes was leaving to go to the emergency room for further

evaluation, the Clerk overheard him tell an EMT that he had fallen down the stairs

because his foot had caught on an uneven stair tread. The Clerk then inspected the

stairs and called the City’s Director of Facilities/Deputy Director of Emergency

Management, who also inspected them.         The Clerk also emailed the Finance

Director and Finance Assistant to inform them that Deschenes had fallen, had

suffered some abrasions, and had been transported to the hospital for evaluation.

      [¶6] On August 13, 2012, 178 days after his fall, Deschenes appeared at

City Hall sometime around 5:00 p.m. when the building’s doors were closed and

locked. He was let in and spoke to an employee in the Clerk’s office, who was

advised by the City’s Finance Assistant to direct Deschenes to the finance office.

Deschenes then met with the Finance Assistant and the Finance Director: he told

them that he knew he only had 180 days to make a claim against the City and

handed them a hospital emergency room note from the day of his fall as well as a

summary sheet of payments that had been made by the VA for his medical
4

treatment.2 Deschenes’s visit to City Hall on August 13 was his first contact with

the City since the day of his fall.

        [¶7]    On September 1, 2012, 197 days after his accident, Deschenes’s

attorney sent a letter to the City Manager providing written notice of a claim

against the City based on his fall. Deschenes then filed a complaint with the

Superior Court on January 28, 2014.

        [¶8] After several months of discovery, the City moved for a summary

judgment, pursuant to M.R. Civ. P. 56(b), and submitted a supporting statement of

material facts, see M.R. Civ. P. 56(h)(1), asserting, inter alia, that it was entitled to

a summary judgment because Deschenes’s written notice dated September 1, 2012,

was sent after the Maine Tort Claims Act’s 180-day deadline for submitting a

written notice of claim against a governmental entity. See 14 M.R.S. § 8107(1). In

response, Deschenes argued that the City was not entitled to a summary judgment

because (1) there is a genuine issue of material fact regarding his compliance with

the Act’s notice provisions; and (2) “notice[] received by [the City] prior to the




    2
      Although Deschenes suggested in his deposition that he told the unidentified employee that his
“claim is still ongoing,” he conceded that when asked directly by the Finance Director whether he was
going to sue the City, he replied that he was not and that he was simply telling them he was still being
treated for his injuries resulting from the fall.
                                                                                                        5

expiration of the 180-day ‘deadline’ served as substantial compliance with the

purposes of the [Act].”3

        [¶9] On April 8, 2015, the Superior Court entered a summary judgment for

the City, concluding that Deschenes had failed to provide a timely written notice of

his claim. The court stated that defects in a written notice can be excused if there

is “substantial compliance” with the Act’s notice provisions but concluded that

“[s]ince a timely written notice was not provided there can be no substantial

compliance.” Deschenes timely appeals to us.

                                         II. DISCUSSION

        [¶10] Deschenes contends that the court erred by finding that he was not in

substantial compliance with the notice requirement of the Maine Tort Claims Act

because he did not file a written notice of claim within 180 days of his fall.4 He

argues (1) that the substantial compliance exception to the Act’s 180-day deadline

is not limited to situations in which a written notice is filed within the 180-day

period but is defective in some way, and (2) that he substantially complied with the

statute because the City was aware of his accident and was not prejudiced by his

   3
    Deschenes submitted an opposing statement of material facts and a statement of additional facts, see
M.R. Civ. P. 56(h)(2), and the City submitted a reply statement of material facts, see
M.R. Civ. P. 56(h)(3). The parties do not substantively dispute the historical facts concerning
Deschenes’s contacts with the City after his fall.
   4
     The adequacy of the September 1, 2012, notice of claim is not at issue because it was filed after the
180-day statutory deadline, and the trial court based its judgment solely on the fact that “written notice
was filed too late.”
6

failure to file a written notice before the 180-day deadline. We review the entry of

a summary judgment de novo. Remmel v. City of Portland, 2014 ME 114, ¶ 11,

102 A.3d 1168.

        [¶11]     The Maine Tort Claims Act requires that a claimant against a

governmental entity “file a written notice” of the claim within 180 days after the

claim accrues.         14 M.R.S. § 8107(1); see Faucher v. City of Auburn, 465

A.2d 1120, 1123 (Me. 1983) (“The MTCA specifically requires that notice to the

governmental entity shall be a written notice.”). This written notice must contain

the contact information of the claimant and the claimant’s attorney; a concise

statement of the basis of the claim, including the date, time, place, and

circumstances of the occurrence complained of; the name and address of any

governmental employee involved, if known; a concise statement of the nature and

extent of the injury suffered; and a statement of the amount of monetary damages

the claimant seeks. 14 M.R.S. § 8107(1)(A)-(E). A notice of claim against a

political subdivision must be “filed with one of the persons upon whom a summons

and complaint must be served under the Maine Rules of Civil Procedure, Rule 4,”

id. § 8107(3)(B) (emphasis added); in this case, Deschenes would have had to file

the notice with “the clerk or one of the selectmen or assessors,”5 see M.R.

    5
      As stated in note 1, for clarity we refer to Sanford in this opinion as a “City,” which is its current
status. However, it was in fact a town at the time of the events giving rise to this case, and, pursuant to
M.R. Civ. P. 4(d)(5) service shall be made “[u]pon a town, by delivering a copy of the summons and of
                                                                                                    7

Civ. P. 4(d)(5). This filing requirement ensures “that the notice will be received by

an official having authority to deal with [a] plaintiff’s claim or that the official

receiving the notice is one charged with the duty of transmitting the notice to the

proper officials.” Faucher, 465 A.2d at 1123.

       [¶12] The Act also provides,

       Substantial notice compliance required. No claim or action shall be
       commenced against a governmental entity . . . unless the foregoing
       notice provisions are substantially complied with. A claim filed under
       this section shall not be held invalid or insufficient by reason of an
       inaccuracy in stating the time, place, nature or cause of the claim, or
       otherwise, unless it is shown that the governmental entity was in fact
       prejudiced thereby.

14 M.R.S. § 8107(4). Thus, “failure to comply with the notice provision bars the

claim,” Cushman v. Tilton, 652 A.2d 650, 651 (Me. 1995), unless (1) the errors in

a plaintiff’s notice constitute mere inaccuracies, and (2) the governmental entity is

unable to show prejudice. Faucher, 465 A.2d at 1123.

       [¶13] We have held “that the substantial compliance exception is applicable

only when the 180-day requirement of § 8107(1) is satisfied.” Erickson v. State,

444 A.2d 345, 349 (Me. 1982). That is, the exception “is properly invoked only

when the notice, although timely filed or excused from timely filing because of

good cause, is defective in some other respect such as the failure to satisfy the form


the complaint to the clerk or one of the selectmen or assessors.” The Rule is different for a city and
requires that such service be made upon “the clerk, treasurer, or manager.” M.R. Civ. P. 4(d)(6).
8

requirements of § 8107(1)(A)-(E).”6               Id. at 350.       However, we have never

definitively determined whether a failure to submit any written notice at all within

180 days of the claim accruing, in and of itself, bars a party from claiming

substantial compliance.

        [¶14] In Erickson, the plaintiff asserted, inter alia, that he had substantially

complied with the Act’s notice requirement by orally informing his supervisor at

Crescent Beach State Park of his on-the-job accident within 180 days after it

occurred. Id. at 346-47. However, we did not determine whether a person can

substantially comply by only giving timely oral notice because Erickson failed to

preserve that issue for our appellate review. Id. at 350.

        [¶15] In Faucher, we were again presented with the argument that an oral

notice of claim within the 180-day period could constitute substantial compliance.

Faucher, 465 A.2d at 1122-23. We noted that

        [t]he trial court found that “an oral notice is more than a defect in
        form and does not constitute substantial compliance within the
        meaning of the statute.” The court reasoned that “[I]n order to
        properly investigate and evaluate [claims] for purposes of defense or
        settlement in an organized fashion, something more than oral
        statements, which are susceptible of distortion when passed on by the
        original recipient of the oral report to those in authority to act upon
        them, is required.” The issue of the acceptability of oral notice was
        pointed out but not decided in Erickson . . . .

    6
       Although the Act provides that a failure to timely file written notice can be excused for “good
cause,” 14 M.R.S. § 8107(1) (2015), Deschenes concedes that the “good cause” exception does not apply
to this case.
                                                                                   9


Id. at 1123. We stated that we found the reasoning of the trial court on this issue

persuasive but concluded that “we need not, on the facts of this case, decide

whether an oral notice is, per se, a fatal failure to comply with the requirements of

section 8107” because the alleged notice provided by the plaintiff suffered from

multiple deficiencies beyond being oral. Id. The question of whether a party can

demonstrate substantial compliance with the Act’s notice requirement if only

timely oral notice was given thus remains unresolved.

      [¶16] As was the case in Faucher, the notice that Deschenes provided to the

City was deficient in a number of ways: it was oral but also suffered from other

shortcomings. See infra n.7. We now hold, however, that for the reasons we

expressed in Faucher, oral notice can never constitute substantial compliance with

the Act, even if the contents of the oral notice otherwise meet the requirements of

section 8107. This holding is consistent with the Act’s plain language. See

generally Searle v. Town of Bucksport, 2010 ME 89, ¶ 8, 3 A.3d 390. It is also

consistent with the Act’s purpose to codify governmental immunity in law and to

provide for only limited exceptions to that immunity.        See Rivard v. City of

Lewiston, 516 A.2d 555, 555 (Me. 1986) (“The [Act] reinstated the general shield

of governmental immunity [after common law governmental immunity was

abrogated in Davies v. City of Bath, 364 A.2d 1269, 1273 (Me. 1976)] subject to
10

limited exceptions.”); see also Peters v. City of Westbrook, 2001 ME 179, ¶ 6,

787 A.2d 141 (stating that the Act is only a “limited relaxation of common-law

sovereign immunity” (quotation marks omitted)); Darling v. Augusta Mental

Health Inst., 535 A.2d 421, 424 (Me. 1987) (noting that, in general, “[c]ourts

strictly construe any exception to governmental tort claims immunity”).

         [¶17] Because a person cannot substantially comply with the Maine Tort

Claims Act’s notice requirement by providing only oral notice of a claim, and

because “failure to comply with the notice provision bars the claim,” Cushman,

652 A.2d at 651, the court did not err in granting a summary judgment for the City

for the reason that Deschenes had failed to provide timely written notice of his

claim, and we affirm.7

         The entry is:

                         Judgment affirmed.
     7
        Deschenes gains nothing even if his oral communications with the City on February 17 and
August 13, 2012, were considered to be effective as a substitute for written notice because, whether
viewed separately or in total, those communications do not otherwise substantially comply with the Act’s
notice requirement. The undisputed facts, viewed in the light most favorable to Deschenes, demonstrate
that these oral communications were deficient. For example, Deschenes did not communicate his claim
to the proper officials who were designated to receive service on behalf of the City. See Pepperman v.
Barrett, 661 A.2d 1124, 1126 (Me. 1995); Kelly v. Univ. of Me., 623 A.2d 169, 172 (Me. 1993); Faucher
v. City of Auburn, 465 A.2d 1120, 1123 (Me. 1983). Rather, although Deschenes spoke to the Clerk, who
is designated to receive service on behalf of a city or town, see M.R. Civ. P. 4(d)(5)-(6), on the day of his
fall, he simply talked with her about the accident, not about any potential claim. Later, on August 13, he
only discussed the possibility of a claim against the City in any depth with the Finance Director and the
Finance Assistant, and, as noted above, see supra n.2, he specifically told them that he was not going to
sue. While he did give them a hospital note and a summary of treatment from the VA, he did not provide
a concise statement of his injuries that would alert them to the amount of monetary damages sought. See
Kelly, 623 A.2d at 172 (finding no substantial compliance despite the fact that the University had a copy
of the accident report for the incident upon which the claim was based).
                                                                        11




On the briefs and at oral argument:

        John F. Zink, Esq., Freeport, for appellant John E. Deschenes

        Michael L. Buescher, Esq., Drummond Woodsum, Portland, for
        appellee City of Sanford



York County Superior Court docket number CV-2014-19
FOR CLERK REFERENCE ONLY
