Facts
Plaintiffs Jermaine and Dorothy Wallace filed a wrongful death action against the City of Atlanta and other defendants after their son was struck and killed by a car on a roadway that allegedly lacked sufficient crosswalks and other safety measures to protect pedestrians. At the time of the fatal accident, the Wallaces’ son was walking with his friends to a public school that is part of the Atlanta Public Schools (“APS”), because his designated public school bus was unreliable and often did not arrive at the bus stop on time.
The Wallaces alleged that the City shared control and authority over the design and maintenance of the road where their son was killed and knew of the dangers that it posed to pedestrians, but failed to include enough crosswalks and other pedestrian safety devices. The Wallaces asserted claims against the City for negligent design, inspection, and maintenance of the roadway and for creating a continuing nuisance that resulted in their son's fatal injuries. The Wallaces further alleged 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.
Before filing their wrongful death action, the Wallaces sent both an ante litem notice and an amended ante litem notice to the City. The first ante litem notice, which was timely sent within 6 months, stated that their son's injuries were “directly attributable to the negligence of APS arising out of its negligent maintenance and use of its school buses.” The original Nnotice further stated that APS owed a duty to properly inspect and maintain school buses to provide students with timely school bus transportation and that APS had breached that duty, with the result that there was a shortage of operable school buses and the Wallaces’ son had to walk to school on the day of the accident.
The Wallaces later sent a second ante litem notice outside the 6-month deadline. It stated that in addition to the allegations included in the first notice, the City failed to provide enough crosswalks and other safety features to protect pedestrians on this roadway, including failing to install safe sidewalks and crosswalks where the Wallaces’ son attempted to cross the road and was struck by the car.
The City moved to dismiss, arguing that the Wallaces failed to substantially comply with the ante litem notice requirements imposed by O.C.G.A. § 36-33-5. The City argued that the first notice was insufficient under O.C.G.A. § 36-33-5 (b) because it did not include any allegations that the son's fatal injuries were caused by the negligence of the City; rather, the only allegations of negligence concerned APS, a separate entity under Georgia law. The City further argued that the second notice was untimely under O.C.G.A. § 36-33-5 (b), which required that notice be given within six months of when the Wallaces’ son was fatally injured, and it could not relate back to cure the defects in the first notice.
The trial court agreed with these arguments and granted the motion to dismiss.
Issues & Holdings
The issues in this case were:
- Did the first ante litem notice substantially comply with the requirement in O.C.G.A. § 36-33-5 (b) that a claimant state “the negligence which caused the injury”?
- Did the second ante litem notice relate back to cure the defects in the first ante litem notice?
The court ruled no in both instances.
Reasoning
Stating “The Negligence Which Caused the Injury”
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 manner and within the time required by the statute is a condition precedent to the maintenance of a suit on the claim. Though a plaintiff need demonstrate only substantial compliance with the requirements imposed by OCGA § 36-33-5 (b), the notice must provide enough information to enable the municipality to conduct an investigation into the alleged injuries and determine if the claim should be settled without litigation. The notice is invalid if it fails to identify “what alleged negligence on the part of the municipality caused the incident” forming the basis for the plaintiff's claim.
The Court of Appeals held that the Wallaces’ first ante litem notice did not substantially comply with this requirement because it contained no allegations of negligence by the City; instead, it identified alleged negligent acts only of Atlanta Public Schools, a separate legal entity. Lacking any indication of what negligence on the part of the City caused their son’s death, the Wallaces’ ante litem notice had failed to identify “what alleged negligence on the part of the [City] caused the [fatal] incident.”
Relation Back
The Court of Appeals held that, as a matter of law, an amended ante litem notice provided to a defendant municipality outside the six-month deadline imposed by OCGA § 36-33-5 (b) does not relate back to the date of an original, defective notice and cannot cure any defects contained in the original notice.
Conclusion
Wallace shows how important it is to comply with ante litem notice requirements. Attorneys should always err on the side of caution and include abundant specificity and detail for all information required to be included.
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Citation: Wallace v. City of Atlanta, No. A23A0904 (Ga. Ct. App. June 20, 2023)
