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Cobbley v. City of Challis11/1/2002
ndition precedent to bringing suit, the failure of which is fatal to a claim, no matter how legitimate. . . . The notice requirement is in addition to the applicable statute of limitations." Id. This Court has held that the notice requirement begins running when a person is aware of such facts that would cause a reasonably prudent person to inquire further into the circumstances surrounding the incident even if the full extent of damages and the government's role are not known at the time. Mitchell v. Bingham Mem'l Hosp., 130 Idaho 420, 423, 942 P.2d 544, 547 (1997); see also Mallory v. City of Montpelier, 126 Idaho 446, 448, 885 P.2d 1162, 1164 (Ct. App. 1994) ("The statute does not begin running when a person fully understands the mechanism of the injury and the government's role, but rather when he or she is aware of such facts that would cause a reasonably prudent person to inquire further into the circumstances surrounding the incident.").
The Cobbleys assert that the district court acted arbitrarily when it determined that September 14, 1999, was when the ITCA 180-day time period began to run against the Cobbleys' claim. The Cobbleys assert that they were not fully apprised of the City's role with regard to the road and that the ownership information was essential to determine whether a claim against the City should be filed. The Cobbleys contend that the date should have been either January 11, 2000, when the report from the city attorney was issued or July 3, 2000, when the Cobbleys received a title report establishing ownership of the road. Further, the Cobbleys argue that because this was a continuing tort the ITCA time limitation was tolled until the tortious conduct ceased.
The district court found that the Cobbleys had sufficient facts to formulate a claim by the first city council meeting the Cobbleys attended on August 10, 1999. The district court stated the Cobbleys knew that the City owned and operated the sewage lagoon adjacent to their property, and that the road would have been used by the City to gain access to the lagoon; they knew that Cyprus had 'deeded' the property to the City. They knew by September 14, 1999 that the City would not pave the road, and that it would be reluctant to close the road.
The time period began to run as early as 1981; but the latest date the Cobbleys could have reasonably known they had a claim against the City would have been September 14, 1999.
The district court did not address this case from the standpoint of a continuing tort, nor that the Cobbleys could pursue a claim for abatement of a nuisance - an action that would not be limited by the requirements of the ITCA. As justification for the district court's omission, the City submits that the Cobbleys did not raise to the district court either the theory of continuing tort nor a claim for abatement of a nuisance. We note, however, that as pled by the Cobbleys in their complaint, the conduct of the City in refusing to abate the ongoing problems experienced by the Cobbleys from speeding vehicles and resulting dust, through some reasonable method of controlling traffic flows, gating, paving, or resurfacing the road to reduce dust, demonstrates nothing more than a claim alleging a continuous tort. A continuing tort has been defined as: one inflicted over a period of time; it involves a wrongful conduct that is repeated until desisted, and each day creates a separate cause of action. A continuing tort sufficient to toll a statute of limitations is occasioned by continual unlawful acts, not continual ill effects from an original violation. Curtis v. Firth, 123 Idaho 598, 603, 850 P.2d 749, 754 (1993) (quoting 54 C.J.S. Limitation of Actions, ยง 177, at 231 (1987)).
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