Surviving parents of a child filed a wrongful death action against the City of Atlanta and others after their son was struck and killed by a car on a road that allegedly lacked sufficient crosswalks and other safety measures to protect pedestrians.
The City filed a motion to dismiss, contending that the parents failed to comply with the requirements of the ante litem notice statute, O.C.G.A. § 36-33-5. The trial court granted the City’s motion, and the parents appealed from the court’s dismissal order. The parents contended that the trial court erred in granting the motion to dismiss because the first notice that they sent to the City substantially complied with the statutory ante litem notice requirements.
Background
Donald Lee Hollowell Parkway is a four-lane state road located within the City of Atlanta. On the morning of September 6, 2019, a speeding car struck and killed the parents’ son as he tried to cross the Parkway on foot. There was no pedestrian crosswalk where he tried to cross. At the time, he was walking with his friends to Frederick Douglas High School, a public school in the Atlanta Public Schools (“APS”), because his school bus was unreliable and often didn’t arrive at the bus stop on time.
The parents filed a wrongful death action against the City and other defendants, including the Georgia Department of Transportation (“GDOT”) and the driver of the car. They alleged that the City shared control and authority over the design and maintenance of the Parkway with the GDOT and knew of the dangers that the road posed to pedestrians, but failed to include a sufficient number of crosswalks and other pedestrian safety devices on the Parkway, including in the area where their son was killed. Consequently, the parents asserted the City was liable for the negligent design, inspection, and maintenance of the Parkway and for creating a continuing nuisance that resulted in their son’s fatal injuries. They also claimed that the City was negligent for failing to provide timely public school busing for their son, with the result that he had to walk to school on the morning of the accident and cross the Parkway.
What Did the Original Ante Litem Notice Say?
Before filing their wrongful death action, the parents sent an ante litem notice to the City. They sent an ante litem notice to the Chairman of the Atlanta Board of Education, the Superintendent of APS, the President of the Atlanta City Council, and the Mayor of the City (“Original Notice”). The Original Notice provided the date, time, and location of the accident and stated that the parents were seeking $1,000,000 in monetary damages for their son’s pain and suffering and wrongful death. Under a section entitled “Negligence which caused Injury,” the Original Notice stated that the son’s injuries were “directly attributable to the negligence of Atlanta Public Schools (“APS”) arising out of its negligent maintenance and use of its school buses.”
The Original Notice also said that APS owed a duty to properly inspect and maintain school buses to provide students with timely school bus transportation and that the APS had breached that duty, with the result that there was a shortage of operable school buses, and the boy had to walk to school on the day of the accident.
After retaining new counsel, the parents sent an “Amended Ante Litem Notice” to the City’s Mayor, the President of the Atlanta City Council, and the City’s attorney on October 20, 2020 (“Amended Notice”). Among other things, the Amended Notice stated that in addition to the allegations included in the Original Notice, the City failed to provide an adequate number of crosswalks and other safety features to protect pedestrians on the Parkway, including failing to install safe sidewalks and crosswalks in the area where the boy tried to cross the Parkway and was struck by the car.
The City filed a motion to dismiss on the ground that the parents failed to substantially comply with the ante litem notice requirements imposed by O.C.G.A. § 36-33-5. The City argued that the Original Notice was insufficient under O.C.G.A. § 36-33-5(b) because it failed to include any allegations that the boy’s fatal injuries were caused by the negligence of the City; rather, the only allegations of negligence in the Original Notice concerned the APS, a separate entity under Georgia law.
The trial court agreed with the arguments raised by the City, concluding that the Original Notice didn’t substantially comply with the ante litem notice requirements set forth in O.C.G.A. § 36-33-5(b) because it failed to include any allegations of negligence by the City. As a result, the trial court granted the City’s motion to dismiss.
Did the Plaintiff’s Original Notice “Substantially Comply” with OCGA § 36-33-5 (b)?
“Under the ante litem notice statute, O.C.G.A. § 36-33-5, anyone who intends to assert a claim against a municipal corporation for monetary damages arising from personal injuries or property damage must first provide notice of the claim,” Presiding Judge Barnes explained. Moreover, under O.C.G.A. § 36-33-5 (b), a person seeking to assert a claim against a municipal corporation for money damages must, within six months of the event on which the claim is predicated, “present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury.” The giving of the ante litem notice in the way and within the time required by the statute is a requirement for the maintenance of a suit on the claim, the judge said.
Judge Barnes wrote further that a plaintiff must demonstrate substantial compliance with the requirements imposed by O.C.G.A. § 36-33-5(b). Even so, the notice must have enough information to allow the municipality to conduct an investigation into the alleged injuries and determine if the claim should be settled without litigation. A notice doesn’t provide sufficient definiteness if it fails to identify the alleged negligence on the part of the municipality that caused the incident forming the basis for the plaintiff’s claim.
Here, the parents’ Original Notice had no allegations of negligence by the City and instead identified alleged negligent acts only of APS, a separate legal entity, as causing the fatal accident. Thus, the Original Notice failed to identify what alleged negligence on the part of the City caused the fatal incident.
As a result, the Court of Appeals held that the trial court committed no error in determining that the Original Notice failed to substantially comply with O.C.G.A. § 36-33-5 (b). Wallac e v. City of Atlanta, 2023 Ga. App. LEXIS 286, 2023 WL 4069940 (Ga. App. June 20, 2023)
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