Short v. City of Greensboro

189 S.E.2d 560 (1972)

Blanche F. SHORT v. CITY OF GREENSBORO.

No. 7218DC361.

Court of Appeals of North Carolina.

June 28, 1972.

*561 Walker, Short & Alexander, by W. Marcus Short, Greensboro, for plaintiff appellant.

Jordan, Wright, Nichols, Caffrey & Hill, by G. Marlin Evans, Greensboro, for defendant appellee.

HEDRICK, Judge.

The one question presented on this appeal is whether the pleadings and affidavits show that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law as to plaintiff's alleged claim.

When a motion for summary judgment is made and supported as provided in Rule 56: "an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Rule 56(e). Robinson v. McMahan, 11 N.C.App. 275, 181 S.E.2d 147 (1971).

Defendant alleged, and plaintiff denied, that the plaintiff had not given notice of her claim to the City Council in accordance with section 7.02(a) of the Municipal Charter, which in pertinent part provides:

". . . (N)o action for damages of any character whatever, to either person or property, shall be instituted against the city unless, within six months after the happening of infliction of the injury complained of, the complainant, his executor, administrator, guardian, or next friend shall have given notice in writing to the Council of the injury, stating in the notice the date and place of the injury, the manner of infliction the character of the injury, and the amount of damage claimed."

Plaintiff contends (1) that since the City carried liability insurance, its governmental immunity was waived, and the notice prescribed by the charter was not required to the extent of the liability insurance; and (2) that even if notice was required, there had been substantial compliance with the provisions of the charter by the plaintiff's attorney's letter to the Assistant Attorney for the defendant City dated 28 June 1968. We do not agree.

Defendant's motion for summary judgment was supported by an affidavit of the Clerk of the defendant City stating that she had examined the records and minutes of her office and of the City Council and that the plaintiff had not given notice of her claim as provided by the charter. The plaintiff filed no affidavits in response to defendant's motion. However, the plaintiff did present at a hearing on the motion a letter dated 28 June 1968 from her attorney to the Assistant City Attorney stating in pertinent part:

"As soon as the doctor releases my mother from further treatment, then I propose to make claim against the City or its insurance company, St. Paul Insurance Companies, for the amount of her damages."

With respect to the form of affidavits to be considered by the Court in determining a motion for summary judgment, Rule 56(e) in pertinent part provides:

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." *562 The unsworn letter in question does not meet the requirements of the rule as a supporting or opposing affidavit and ought not to have been considered by the Court in its ruling on the motion. Lineberger v. Colonial Life & Accident Insurance Co, 12 N.C.App. 135, 182 S.E.2d 643 (1971); Ogburn v. Sterchi Brothers Stores, Inc., 218 N.C. 507, 11 S.E.2d 460 (1940). Nevertheless, even if the letter was competent, we do not think it was sufficient compliance with the requirements of the charter. Sufficiency of a notice of claim against a municipality, before bringing an action for damages, may be determined by the city charter. Webster v. Charlotte, 222 N.C. 321, 22 S.E.2d 900 (1942). This letter is nothing more than an expression of plaintiff's attorney's intention to file a claim for damages against the City on behalf of his client sometime subsequent to 28 June 1968. This letter is not notice in writing to the Council of the injury, the date and place of the injury, the manner of infliction, the character of the injury, and the amount of damage claimed.

Plaintiff cites Bowling v. Oxford, 267 N.C. 552, 148 S.E.2d 624, in support of his contention that the notice prescribed by the charter was not required in this case. Suffice to say the cited case does not support his contention. Compliance with the city charter requirements that notice be given the governing body of the municipality within a specified time, of any claim for damages for personal injury, is a condition precedent to the right to institute action against the municipality to recover such damages. 5 Strong, N.C. Index 2d, Municipal Corporations § 42, p. 718. We hold the pleadings and affidavits disclose that there is no genuine issue as to any material fact and that the defendant is entitled to judgment as a matter of law. The judgment appealed from is

Affirmed.

BRITT and PARKER, JJ., concur.