Indiana Court of Appeals Declines to Find Equitable Estoppel for Slip-and-Fall Claimant’s Failure to Comply with Indiana Tort Claims Act Notice Requirement

The Indiana Court of Appeals recently reversed a trial court’s decision allowing a slip-and-fall claimant’s case to move forward against a governmental entity despite non-compliance with the Indiana Tort Claims Act (ITCA). In City of Columbus v. Londeree, the Plaintiff, Debra Londeree, slipped and fell on ice in the parking lot of the Foundation for Youth of Bartholomew County (FFY). The City of Columbus (City) provided snow removal services for FFY. After the fall, Debra filed an incident report with FFY. She then spoke with the City’s risk office and was told that the City had not received her incident report. A few weeks later, a City employee called Debra and told her the insurance company would contact her. However, the City’s insurance carrier, Tokio Marine Insurance, never contacted her. FFY’s insurance carrier, Cincinnati Insurance, did contact her, but the claims representative was not working for the City or its insurer and did not tell Debra, who was relying upon the claims representative, that she was working for the City or its insurer.

After Cincinnati Insurance denied the claim on behalf of FFY, Debra and her husband Dan filed a lawsuit against FFY and the City. Neither Debra nor Dan served a notice of tort claim on the City within 180 days from the fall as required by the ITCA. Under the ITCA, a notice of claims against a political subdivision, which includes cities, must be filed with the governing body of the political subdivision and the Indiana political subdivision risk management commission within one hundred eighty (180) days after the loss. Ind. Code § 34-13-3-8. A claimant must describe “in a short and plain statement the facts on which the claim is based,” including the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice. Ind. Code § 34-13-3-10.

The City filed a motion for summary judgment against Debra and Dan due to their non-compliance with the notice requirements of the ITCA. The trial court denied the City’s motion as to Debra finding there was a genuine issue of material fact as to whether the City should be estopped from raising the ITCA notice defense due to Debra’s understanding of the relationship between the City and FFY and whether her reliance on the representations of FFY and the City were reasonable. As to Dan’s derivative claim, the trial court granted the City’s motion based upon precedent providing that a spouse claiming loss of consortium must file a separate notice of tort claim.

A plaintiff raising equitable estoppel must show (1) a representation or concealment of a material fact; (2) made by a person with knowledge of the fact and with the intention that the other party act upon it; (3) to a party ignorant of the fact; and (4) that the representation or concealment induces the other party to rely or act upon it to his detriment. In deciding whether equitable estoppel applies so as to prevent a governmental entity from raising an ITCA notice defense, courts focus on the conduct of the governmental entity with the crucial question being whether the governmental entity had actual knowledge and investigated the incident and surrounding circumstances. Further, the actions of the governmental entity must have induced the plaintiff to believe that filing a notice of tort claim was not required. Courts have found genuine issues of material fact supporting estoppel where a government’s agent told the plaintiff it would be in the plaintiff’s best interest to wait until he is released from treatment before trying to settle his claim, where a county’s insurance carrier admitted liability, made payments to the plaintiff, and told the plaintiff it would take care of everything, where an insurance carrier encouraged the plaintiff to complete medical treatment before seeking settlement, and when a county promised to fully reimburse the plaintiff.

Here, however, the Court of Appeals found there was no genuine issue of material fact to support a finding of equitable estoppel. The City did nothing to induce Debra to believe compliance with the ITCA was not required. Despite being aware of the claim vis-à-vis Debra’s phone call with the City’s risk office, the City did not investigate the slip-and-fall incident and therefore acquire the requisite actual knowledge to satisfy the purposes of the ITCA notice requirement. There was a complete absence of communication between the City and Debra after Debra’s initial phone call with the City’s risk office, with the City taking no position, and certainly no inconsistent position, as to Debra’s claim. The Court also refused to impute Cincinnati Insurance’s claims representative’s conduct to the City, because to do so would not serve the deterrent purpose of estoppel.

Since Debra had not filed a notice of tort claim and equitable estoppel did not apply, the Court of Appeals reversed the trial court’s denial of the City’s motion for summary judgment as to Debra. As to Dan’s claim, while recognizing that derivative claims can proceed absent the personal injury claim being barred on the merits, as opposed to procedurally barred, the Court agreed with the trial court and affirmed the trial court’s grant of summary judgment to the City as to Dan’s claim because the undisputed evidence showed that Dan had not filed a separate tort claim notice.

You can read the full opinion here.