EVELYN DENTON V. CITY OF FLORENCE
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RENDERED : NOVEMBER 25, 2009
TO BE PUBLISHED
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EVELYN DENTON
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2006-CA-002272-MR
BOONE CIRCUIT COURT NO. 06-CI-00756
CITY OF FLORENCE
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING AND REMANDING
I. Introduction
This is an appeal from an opinion of the Court of Appeals affirming the
decision of the Boone Circuit Court dismissing Appellant's complaint against
the City of Florence on the grounds that she did not comply with KRS 411 .11.0
by failing to provide the city with the correct date of her injury. For reasons
that Appellant, Evelyn Denton, did comply with KRS 411 .110's notice
requirements by stating that her accident occurred "on or about January 18,
2006," we hold that the trial court improperly dismissed her claim . We,
therefore, reverse the decisions of the Court of Appeals and the Boone Circuit
Court and remand this matter to the trial court for further proceedings
consistent with this opinion.
II. Background
Appellant,
velyn Denton, was injured when she slipped on roc salt on
the sidewalk in front of the City of Florence City Building on January 20, 2006.
She provided notice of such to the city by faxing and mailing certified
notification letters to the Mayor, City Clerk, and the City of Florence's attorney
on March 15, 2006, albeit, in, her notification letters, Appellant stated the
accident occurred "on or about January 18, 2006." Appellant later filed suit
against the city and her complaint alleged the accident occurred "on or about
January 18, 2006." After receiving initial discovery responses from the city,
Appellant ascertained that the actual date of her accident was January 20,
2006 and amended her complaint accordingly.
The trial court subsequently granted the city's motion for judgment on
the pleadings, attacking her original notice, and concluded that Appellant had
not strictly complied with the notice requirements contained in KRS 411 .110 . 1
In doing so, the trial court reasoned that Appellant had not stated the correct
date of the accident in her notice to the city since she stated that the accident
1 KRS 411 .110 reads:
No action shall be maintained against any city in this state because of
any injury growing out of any defect in the condition of any bridge,
street, sidewalk, alley or other public thoroughfare, unless notice has
been given to the mayor, city clerk or clerk of the board of aldermen in
the manner provided for the service of notice in actions in the Rules of
Civil Procedure . This notice shall be filed within ninety (90) days of the
occurrence for which damage is claimed, stating the time of and place
where the injury was received and the character and circumstances of
the injury, and that the person injured will claim damages therefor from
the city.
(emphasis added) .
had occurred "on or about January 18, 2006" rather than. - lanu rv 20, 200
The Court of Appeals affirmed the ruling of the trial court, noting that
13aldridge v. -City of Ashland, 613 S .W.2d 430 (Ky. App . 1981) had not been
overruled . Appellant sought discretionary review, which we granted. For
reasons that Appellant did comply with the statutory notice requirements
contained in KRS 411 . 110, we now reverse .
III. Analysis
In Baldridge., the Court of Appeals held "literal compliance with the
statute is necessary ." Id. at 431 . Appellant argues, however, that the (Apt of
Florence had actual notice of her accident : a city employee had taken pictures
of the area just after Appellant's 011, there was ;a Fire Department/ Ambulance
report, and the city had prepared, signed, and dated incident reports on
January 20, 2006. However, actual or constructive notice of the incident on
the part of the city is not enough-Appellant still must have met the dictates of
KRS 411 .110 before properly filing suit against the city. Reibel v . Woolworth,
301 Ky. 76, 190 S.W.2d 866 (1945) .
In order to satisfy KRS 411 .110, Appellant was required to state the
"time" of her accident . We look to the plain language and the purposes of the
statute in order to determine whether Appellant strictly complied with the
statute by stating that her accident occurred "on or about January 18, 2006."
As we explained in City of Louisville v . ONeill, the purposes of KRS 411 .110
are:
to give the city an opportunity to investigate the scene of an
accident and correct any defective condition, if such exists, to
enable the city to investigate and evaluate the case so that if
liability exists it might have an opportunity to settle it without long
and expensive litigation, and to give the city an opportunity to
protect its funds against. unjust and illegal claims.
440 S .W.2d 265, 266 (Ky. 1969) . Here, however, we must construe the date
given in connection with the language "on or about."
As our predecessor court explained in Render v. Commonwealth, "[t]he
common understanding of the words `on or about,' when use in connection
with a definite point of time, is that they do not put the time at large, but
indicate that it is stated with approximate accuracy." 206 Ky . 1, 266 S.W . 914,
916 (1924) (citation omitted) . Therein, the court stated that a period of three or
four months was not within the referenced time frame . Id . While Render
concerned a date in a criminal indictment, its construction of the term "on or
about" is pertinent here. We also addressed the term "o
or about" in dames v.
Commonwealth , noting that: "[o]n or about the date could have covered a
period of several days." 482 S .W .2d 92, 93 (Ky. 1972) . As our precedents
make clear, whether a particular date reasonably falls within the window of
time created by the term "on or about" is a fact-intensive review which is
relative to the circumstances of the particular case-the window may be as
small as "several days," but may not be as large as "three to four months" and
depends entirely on the circumstances of the individual case. Clearly, however,
two (2) days is within the span of "several days" and thus, notice that an
accident occurred "on or about January 18, 2006" includes January 20, 2006 .
We also note that the notice in Baldri$ did ot contain
(ton or about"
language as did Appellant's notice in the case at hand . 613 S.W .2d at 431 .
Simply put, this is not a case cal' substa tial compliance ; it is one of actual
compliance .
Appellant therefore complied with the statutory requirement that she
state the time of her accident in her notice to the city and met the statute's
purpose of protecting public safety by apprising the city as to a defective
condition so they had an opportunity to investigate and correct it .
Furthermore, we note that Appellant complied with the ninety (90) day
period in which she had to give the city notice . The statute speaks to this
point: notice must be given within ninety (90) days of the date of the incident.
KRS 411 .110 .
IV. Conclusion
For the foregoing reasons, the decisions of the Court of Appeals and the
Boone Circuit Court are hereby, reversed and this matter is remanded to the
trial court for further proceedings consistent with this opinion .
Minton, C.J . ; Abramson, Cunningham, Schroder, and Venters, JJ .,
concur. Noble, J ., concurs in result only by separate opinion.
NOBLE, J., CONCURRING IN RESULT ONLY: I concur in result, but I
think the Court of Appeals in Baldridge v . City of Ashland, 613 S.W .2d 430
(Ky.App . 1981) overconstrued the "time" language in KRS 411 . 110. "On or
about January 18, 2006" is a statement of time, though admittedly more
flexible than the precision required by Baldridge . I believe the majority Opinion
at least implicitly overrules Baldridge any I woul do so outright .
L
COUNSEL FOR APPELLANT:
Hon . Donald L. Nageleisen
231 Scott Blvd ., Suite IA
Covington, KY 41011
COUNSEL FOR APPELLEE :
Hon . Hugh 0. Skees
Skees, Wilson &, Dillon, PLLC
7699 Ewing Blvd .
P.O. Box 756
Florence, KY 41041-0756
Hon. Jeffery C. Mando
Hon. Matthew Thomas Lockaby
Adams, Stepner, Woltermann & Dusing, PLLC
40 W Pike St. P.O . Box 861
Covington, KY 41012-0861
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