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Cobbley v. City of Challis11/1/2002
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The Court has held that where a continuing tort appears the focus is on the acts complained of, rather than the damages, when determining when the ITCA 180-day notice period is triggered. Farber v. State, 102 Idaho 398, 630 P.2d 685 (1981).
Furthermore, the district court precluded the Cobbleys from amending their complaint when the court held that the original complaint was improper because the notice of tort claim was untimely. Had the court allowed the Cobbleys to amend their complaint, they could have specifically alleged a claim for abatement of a nuisance, which would not be an action to recover damages and subject to the constraints of the notice requirements under the Tort Claims Act. In her dissenting decision to the opinion of the Court of Appeals in this case, Judge Karen Lansing pointed out:
The Cobbleys' complaint expressly alleges that the City is causing or allowing a nuisance condition on its property that adjoins the Cobbleys' property. Thus, the question presented is when a nuisance claim arises for purposes of application of the tort claim notice of statute.
In the analogous circumstances of applying the statute of limitation to a nuisance claim, a continuing nuisance is treated like a continuing tort for which the limitations period begins to run anew for each repetition of the nuisance. The rule is described as follows in 58 AM. JUR. 2D Nuisances § 307 (1989):
ith regard to nuisance which are continuing in nature, as to which every repetition of the wrong may create further liability and create a new cause of action, the statute of limitations does not run merely from the original intrusion with respect to property damage or personal injury , and cannot be a complete bar in any case where the nuisance is of a continuing character and the resulting encroachment has progressively increased up to the time of the commencing action. Rather, a new statute of limitations begins to run after each separate invasion of plaintiff's property. Thus, as to nuisances which are temporary or recurring in nature, the applicable statute of limitations may bar only those events that occurred more than the designated time period to the filing of the lawsuit, so that an action may be brought for damages accrued by the time of trial and occurring within the prescribed time before the filing of the lawsuit. Recovery may be had in an action for temporary or continuing nuisance for damages accruing within the statutory period next preceding the commencement of the action although more than the statutory period has elapsed since the creation of the nuisance.
Judge Lansing further pointed out that in Curtis v. Firth, supra, this Court held that in the case of a continuing tort, the statute of limitations does not begin to run upon the commencement of the tortious conduct but, rather, is tolled until the tortious behavior has ceased. She noted that the Court used a similar analysis in application of the statutory notice requirement in Farber v. State, supra, when the Court considered a tort claim against the state for damage allegedly caused to the plaintiffs in the course of a project for reconstruction of a street. The Farbers brought an action against the state and the contractor performing the work, alleging damages from the negligent planning, construction and design of the project. The Court noted that the State's conduct of which the plaintiffs complained 'is in the nature of a continuing tort.' Id. at 401, 630 P.2d at 688. The Court held that the notice period did not begin to run when the project or damage began, but rather, when the construction project was completed. The Court commented that this interpretation of § 6-905, as applied to continuin
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