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Frappier v. Mergler3/15/1988
equence of the collision. To the contrary, both the police report and other information the governmental entities had indicated that Frappier was the responsible party. In fact, the police report specifically stated that Frappier "did not hear siren, or see lights behind her, turned left into path of [police car] * * *." The only indication on the report of any loss suffered by Frappier was the notation that her automobile had sustained damage in excess of $100. While there is no dispute that the Village had actual notice of the accident, that is insufficient to vest the Village with the knowledge that it or any of its employees may be subject to a lawsuit or of the likelihood of litigation as a result of that accident. The facts contained in the police report, alone, are not even sufficient to put the Village or the Department on notice that Frappier considered the accident to be the fault of any of the defendants.
The question of whether the knowledge of Mergler, the Chief and the Mayor constituted actual knowledge requires the same conclusion. There exists no indication from the record that Mergler, the Chief, the Mayor or anyone else present at the scene of the accident was apprised at that time, or at any time within the statutory period, that Frappier considered the accident to be the fault of any of the defendants or that the filing of a lawsuit by Frappier was likely. Similarly, no such information was provided by Frappier to the Village, the Department, or any agents or employees of the Village or Department during the ninety-day period that ensued after the accident. As a result, we hold, consistent with City of Las Cruces v. Garcia, that actual notice was not provided to the Village or the Department as required under Section 41-4-16(B) of the TCA. Accordingly, we affirm the granting of summary judgment as to both the Village and the Department.
Issue II
Frappier sued the Chief and the Mayor both individually and in their respective capacities as employees of the Village. Frappier contends that notice under Section 41-4-16 is unnecessary because these defendants are not state or local public bodies. We agree.
Section 41-4-16(A) requires the claimant provide written notice to specified governmental officials of a claim against "the state or any local public body." The written notice requirement of Section 41-4-16(A), however, does not apply to public employees. Martinez v. City of Clovis, 95 N.M. 654, 625 P.2d 583 (Ct. App.1980). Accordingly, summary judgment, as it relates to all defendants other than the Village and the Department, is reversed.
Conclusion
The trial court's granting of summary judgment in favor of the Village and Department is affirmed; the trial court's granting of summary judgment against all other defendants is reversed. We remand this matter to the trial court for further proceedings consistent with this opinion.
IT IS SO ORDERED.
WE CONCUR: DONNELLY, Chief Judge and MINZNER, Judge.
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