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Morgan v. Board of Water Works of Pueblo7/30/1992
In this personal injury action to recover damages for negligence, defendant, Board of Water Works of Pueblo appeals from the judgment entered upon a jury verdict in favor of plaintiffs, Clifford R. and Gladys Morgan. We affirm.
Plaintiffs were injured on June 1, 1987, when their vehicle struck a water valve cover which was protruding from the surface of a residential street in Pueblo. The jury returned a verdict in plaintiffs' favor, finding that the Board was 75% at fault and that plaintiff Clifford Morgan, the driver, was 25% at fault in causing the accident. The trial court entered judgment in the net amount of $32,197.50 in favor of Clifford R. Morgan and $46,663.28 in favor of Gladys Morgan.
I.
Relying on Deason v. Lewis, 706 P.2d 1283 (Colo. App. 1985), and Jones v. Northeast Durango Water District, 622 P.2d 92 (Colo. App. 1980), the Board contends that the trial court erred in denying its motion for judgment notwithstanding the verdict because plaintiffs failed to plead and prove compliance with the notice provisions of the Governmental Immunity Act, § 24-10-109, C.R.S. (1988 Repl. Vol. 10A). This contention is without merit.
When issues not raised by the pleadings are tried by express or implied consent of the parties, they are to be treated in all respects as if they had been raised in the pleadings. C.R.C.P. 15(b).
As pertinent here, § 24-10-109(1), C.R.S. (1988 Repl. Vol. 10A) requires a person claiming to have suffered an injury by a public entity to file a written notice of claim within 180 days after the discovery of the injury. Further, timely written notice in compliance with this section is a jurisdictional prerequisite to any action brought under the Act. Woodsmall v. Regional Transportation District, 800 P.2d 63 (Colo. 1990).
Here, although plaintiffs did not allege compliance with the notice provision in their original complaint, the record reflects that they mailed a proper notice of claim in compliance with § 24-10-109 two weeks after the alleged injuries were sustained. Further, it is undisputed that a copy of the notice was admitted into evidence without objection and by stipulation of the Board's counsel. Under these circumstances, where the fact of complying notice was established by the evidence, the trial court properly refused to treat plaintiff's failure to plead such compliance as a jurisdictional bar. See C.R.C.P. 8(a) and C.R.C.P. 15(b).
We reject the Board's argument that either Deason v. Lewis, supra, or Jones v. Northeast Durango Water District, supra, requires a different result. Both cases were decided prior to the 1986 amendments to the Act and are factually distinguishable from the present case. In each of those cases, as opposed to the present one, the plaintiffs admitted that they had not filed timely written notice with the public entity in compliance with § 24-10-109. Thus, any amendment of the pleadings to reflect compliance with the notice requirements was not possible under the admitted facts in those cases.
II.
The Board also contends that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict because plaintiffs did not establish that the Board had actual or constructive notice of the allegedly dangerous condition. We perceive no error.
A motion for directed verdict based upon the sufficiency of the evidence can be granted only if the evidence, and the legitimate inferences f
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