Notice of Tort Claims

City of Indianapolis v. Buschman (Ind. Ct. App. June 26, 2012)

Plaintiffs who are injured by governmental entities must provide notice to those entities within 180 days of the injury or forfeit the claim. In this case, the plaintiff provided notice of the facts that gave rise to her injuries, but indicated in the notice that she has suffered property damage only and not personal injuries. The plaintiff later filed a lawsuit seeking damages for personal injuries and property injury. The Court of Appeals held that the plaintiff was barred from seeking personal injuries.

The Court of Appeals noted that the Tort Claim Notice statute requires claimants to include in their notice statements regarding the “extent of the loss” and the “amount of the damages sought.” Ind. Code § 34-13-3-10. As the Court of Appeals noted, allowing a plaintiff to seek personal injuries in a lawsuit where the tort claim notice specifically denied personal injuries “would effectively eliminate ‘the extent of the loss’ and ‘the amount of the damages sought’ provisions from the notice requirement.” Therefore, the Court held that “when a claimant’s notice contains a specific and definitive assessment of loss, his or her recovery is limited to the loss described in the original notice.”

This decision is important for any attorney bringing or defending a claim against a governmental entity. Practitioners should carefully examine the notice of tort claim to determine if any affirmative defenses exist to damages later claimed in a lawsuit. On the flip side, attorneys representing plaintiffs should carefully prepare their notice of tort claim to make sure the notice encompasses all reasonably conceivable losses.