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Perry v. City of Birmingham1/7/2005
Barry Perry appeals the summary judgment entered in favor of the City of Birmingham on the ground of his failure to notify the City of his claim as required by law. We affirm.
On July 28, 2003, Perry sued the City of Birmingham for negligently maintaining the sidewalk outside the Social Security office. He alleged that, on October 28, 2002, he suffered injuries when his wheelchair overturned as a result of a defect in the sidewalk. The City moved to dismiss or, in the alternative, for a summary judgment on the ground that Perry did not file his claim within six months of his injury as required by § 11-47-23 and § 11-47-192, Ala. Code 1975. The City submitted an affidavit from the City clerk, who stated that she had no record of any claim or lawsuit filed by Perry within six months of October 28, 2002.
Perry responded and submitted an affidavit from the secretary of his attorney. The secretary stated that she had mailed Perry's verified notice of claim on February 25, 2003. Attached to her affidavit was a copy of Perry's verified notice of claim. Thereafter Perry amended his complaint to assert that his accident and injuries had occurred on August 28, 2002 as a result of the negligent maintenance of the sidewalk.
After a hearing, the trial court entered summary judgment in favor of the City on the ground that Perry did not, within six months of his injuries, file notice of his claim with the City clerk. Perry filed a motion to reconsider on the ground that the mailing of his claim was in fact a filing. The City opposed the motion to reconsider. The trial court denied Perry's motion on the ground that "mailing s not the same as filing" a claim and that Olsen v. Moffat Road Veterinary Clinic, 441 So. 2d 971 (Ala. Civ. App. 1983), cited by the City, is controlling.
On appeal, Perry contends that, because his filing a claim is not the same as filing an appeal of an unemployment compensation determination, Olsen is not controlling. Citing Laffey v. Philadelphia & Reading Coal & Iron Co., 125 Pa. Super. 9, 189 A. 509 (1937), Loeloff v. Kelly Press Division of American Type Foundry Co., 10 N.J. Misc. 1156, 163 A. 1 (1932), and Sweeney v. City of New York, 225 N.Y. 271, 122 N.E. 243 (1919), Perry contends that a claim is filed when the claim is mailed.
Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So. 2d 425 (Ala. 1999). The court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party. System Dynamics Int'l, Inc. v. Boykin, 683 So. 2d 419 (Ala. 1996). In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court. Dobbs, supra.
Section 11-47-23, Ala. Code 1975, provides that
" ll claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from accrual of said claim or shall be barred. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred."
Section 11-47-192, Ala. Code 1975, provides that
" o recovery shall be had against any city or town on a claim for personal injury received, unless a sworn statement be filed with the clerk by the party injured or his personal representative in case of his death stating substantially the manner in which the injury was received, the day and time and
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