Etherton v. City of Homewood9/10/1999
Rel: 09/10/1999 Etherton
On Return to Remand
This case was remanded on August 15, 1997. See the opinion at 700 So. 2d 1374. On remand, the trial court granted the Ethertons' motion pursuant to Ala. R. Civ. P. 77(d) to extend the time in which to file an appeal. In doing so, the trial court did not abuse its discretion. This case is now, therefore, correctly postured for review.
According to the complaint commencing this action, Mr. Etherton was injured on March 18, 1995, in the parking lot of a store operated by the Sherwin-Williams Company in Homewood, when he stepped out of his vehicle into an "open service hole" that was filled with rainwater. On July 18, 1995, Mr. Etherton sent by certified mail to the "City of Homewood, Clerk," and to counsel for the City of Homewood, a document styled "Notice of Claim" (hereinafter "Notice"). That Notice read as follows:
"TO: CITY OF HOMEWOOD, CLERK
"Pursuant to the provisions of Code of Alabama, Sections 11-47-23 and 11-47-192, comes now VHERN ETHERTON and does hereby give notice and presents a claim against "Birmingham Water Works Board in the Sum of $400,000.00."
"Said claim arises out of the personal injury sustained by Claimant, Vhern Etherton, in a slip and fall accident on 1834 29th Avenue-South, Homewood, Alabama in front of Sherwin- Williams Company. Such accident occurred on March 15, 1995.
"On the day of the accident claimant, Vhern Etherton, stepped out of his automobile on 29th Avenue-South and he stepped in an open service hole. Claimant attempted to regain his balance, but was unable to do so and landed in the street injuring his knee and back. Claimant sought and continues to receive medical treatment from the injuries to his back.
"Claimant, Vhern Etherton, as a result of said fall sustained bruises, abrasions and swelling to his knee and was diagnosed with a severe back injury , probably permanent. As a direct consequence of these injuries, claimant, Vhern Etherton, has incurred medical expenses, pain, suffering, emotional distress and inconvenience.
"If you know of any other person or entity you deem to be responsible in any manner for the injuries of claimant, Vhern Etherton, you should inform the claimant and his attorney of the name and address of such person or entity immediately.
"Dated this 18th day of July , 1995.
"/s/Vhern Etherton" (Emphasis and footnote added.)
Etherton alleges that " o response was ever made by the City of Homewood or its attorneys."
On April 11, 1996, Vhern Etherton and his wife, Barbara Etherton, commenced this action. The complaint named as defendants (1) the City of Homewood (the "City"), (2) the "Birmingham Water Works," (3) the Sherwin-Williams Company, and (4) a number of fictitiously named defendants. In Count One, Mr. Etherton alleged that the defendants had "negligently maintained an open service hole," and sought compensation for his personal injuries. In Count Two, Barbara Etherton sought compensation for loss of consortium.
On May 21, 1996, the City moved, pursuant to Ala. R. Civ. P. 12(b)(6), to dismiss the claims against it, stating in pertinent part:
"Plaintiff alleges, essentially, that on or about March 18, 1995, fell into a hole located in the parking lot in front of the Sherwin-Williams Company ....
"2. Apparently, because the pothole was in the City of Homewood, Etherton claims some damage from the City of Homewood.
"3. Ala. Code ยง 11-47-23 provides that a written claim must be served upon the City Clerk within six months of the date of the incident, setting out the de
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