 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Cobbley v. City of Challis11/1/2002
g torts arising out of projects for which the State contracts, "is consistent with our announced policy of liberally construing statutes 'with a view to accomplishing their aims and purposes, and attaining substantial justice,' Keenan v. Price, 68 Idaho 423, 438,195 P.2d 662, 670 (1948), and our generally liberal approach to interpreting the notice requirement of the ITCA." Id. at 402, 630 P.2d at 689.
In many of the cases dealing with the continuing tort and the ITCA there is a definite starting or ending point that begins the running of the ITCA 180-day notice period. See e.g. Mallory v. City of Montpelier, 126 Idaho 446, 885 P.2d 1162 (Ct. App. 1994) (plaintiff injured in city baseball field, although it was not known at the time the cause of the injury or that the city owned the baseball field, the ITCA notice period began on the day of the accident); Farber v. State, supra, (in suit against the State and the contractor performing the work, alleging damages from the negligent planning, construction and design of the reconstruction project of a street, ITCA notice period began when the construction project was complete rather than when the project or damage began). Here, there is a starting point at which the allegedly tortious conduct and damages began, however, the conduct continues; and the end is not determinable. There is a series of ongoing, discrete events or conduct and resultant damages allegedly arising from each incident.
The Cobbleys could have filed a notice of tort claim years ago when the road use providing access to the sewer treatment center increased, however, they chose to repair the road themselves. When the problem became too much for the Cobbleys to deal with, they went to the city council to seek assistance because they thought that the City had an ownership interest in the road. The City prolonged the Cobbleys' claim until the city attorney concluded that the City did not own the road and therefore was not going to close or maintain it. When the City realized it owned the road, it chose not to maintain the road for various reasons, leaving the road to continue to cause problems for the Cobbleys.
Upon filing their notice of claim, the Cobbleys could seek damages that resulted during the 180-day period preceding their notice. Aside from the question of recoverable damages, leave should be granted to the Cobbleys to amend their complaint by alleging a claim to abate a nuisance, should they so move. Such a claim would not be subject to the ITCA.
B. Other Defenses
The City argues that it does not have authority to repair or maintain a road outside of the City limits pursuant to I.C. § 50-313. Since the subject road is outside the Challis City limits, the City argues that the dismissal of the Cobbleys' complaint may be affirmed on this ground. Another ground to affirm the dismissal of the complaint argued by the City is that the City's activities were within its discretion based upon I.C. § 6-904 and its exercise of such discretion not to pave and maintain the road is immune from liability.
The City did not file an answer nor was a copy of the City's memorandum in support of its motion to dismiss included in the record. It appears from the Cobbleys' memorandum in opposition of the motion to dismiss that the City raised these issues to the district court; the Cobbleys argued that the City acted in its proprietary function when it operated the access road to the sewer lagoon and thereby should be liable for its acts and that the road is not a public road or highway within the meaning of I.C. § 50-313.
There is an insufficient record before this Court to make a determination on the City's suggested defenses, a
Page 1 2 3 4 5 6 7 Idaho Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|