13-905. Tort claims; filing; requirements.

All tort claims under the Political Subdivisions Tort Claims Act and sections 16-727, 16-728, 23-175, 39-809, and 79-610 shall be filed with the clerk, secretary, or other official whose duty it is to maintain the official records of the political subdivision, or the governing body of a political subdivision may provide that such claims may be filed with the duly constituted law department of such subdivision. It shall be the duty of the official with whom the claim is filed to present the claim to the governing body. All such claims shall be in writing and shall set forth the time and place of the occurrence giving rise to the claim and such other facts pertinent to the claim as are known to the claimant.

Source

Annotations

1. Constitutionality

2. Notice requirements

3. Affirmative defense

1. Constitutionality

This section is relevant and related to a legitimate governmental interest, and therefore does not violate the uniformity clause of the Nebraska Constitution or the equal protection clause of the U.S. Constitution. Willis v. City of Lincoln, 232 Neb. 533, 441 N.W.2d 846 (1989).

2. Notice requirements

Where the secretary of a county hospital’s board of trustees was the person whose duty it was to maintain the official records of the political subdivision, a claim filed with the county clerk and the county hospital’s chief executive officer did not comply with the notice requirements of the Political Subdivisions Tort Claims Act. Brothers v. Kimball Cty. Hosp., 289 Neb. 879, 857 N.W.2d 789 (2015).

A written claim must make a demand upon a political subdivision for the satisfaction of an obligation rather than merely alerting the political subdivision to the possibility of a claim. Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (2003).

For substantial compliance with the written notice requirements of this section, within 1 year from the act or omission on which the claim is based, the written notice of the claim must be filed with an individual or office designated in the Political Subdivisions Tort Claims Act as the authorized recipient for notice of claim against a political subdivision. A notice of claim filed only with one unauthorized to receive a claim pursuant to this section does not substantially comply with the notice requirements of the act. Estate of McElwee v. Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d 461 (2003).

With regard to a claim's content, substantial compliance with the statutory provisions supplies the requisite and sufficient notice to a political subdivision, so long as the written notice is filed with an individual or office designated in the Political Subdivisions Tort Claims Act as the authorized recipient of claims. Woodard v. City of Lincoln, 256 Neb. 61, 588 N.W.2d 831 (1999).

Notice requirements for a claim filed pursuant to the Political Subdivisions Tort Claims Act are to be liberally construed so that one with a meritorious claim may not be denied relief as the result of some technical noncompliance. Mere knowledge of an act or omission, by a nondesignated party, is not sufficient to satisfy this section's notice requirements. If a political subdivision, by an appropriately specific allegation in a demurrer or answer, raises the issue of a plaintiff's failure to comply with the notice requirement of this section, the plaintiff then has the burden to show compliance. Schoemaker v. Metropolitan Utilities Dist., 245 Neb. 967, 515 N.W.2d 675 (1994).

Compliance with the filing or presentment of claim provision in this section is a condition precedent to commencement of a negligence action against a political subdivision. Schmidt v. Omaha Pub. Power Dist., 245 Neb. 776, 515 N.W.2d 756 (1994).

Filing or presentment of a claim under the Political Subdivisions Tort Claims Act is neither a condition precedent to a political subdivision's tort liability nor a substantive element for a claimant's recovery in a negligence action against a political subdivision, but is a condition precedent to commencement of a negligence action against a political subdivision. Millman v. County of Butler, 235 Neb. 915, 458 N.W.2d 207 (1990).

For substantial compliance with the notice requirement of this section, within one year from the act or omission on which the claim is based, the written notice of claim must be filed with an individual designated in the Political Subdivisions Tort Claims Act as the authorized recipient for notice of claim. Willis v. City of Lincoln, 232 Neb. 533, 441 N.W.2d 846 (1989).

The filing of a notice of claim under the Political Subdivisions Tort Claims Act is a condition precedent to the institution of a suit to which the act applies. When the act does apply, failure to allege compliance with its provisions is a fatal defect, rendering the petition defective and subject to a demurrer. Employers Reins. Corp. v. Santee Pub. Sch. Dist. No. C-5, 231 Neb. 744, 438 N.W.2d 124 (1989).

Substantial compliance with the statutory provisions pertaining to a claim's content supplies the requisite and sufficient notice to a political subdivision in accordance with this section, when the lack of compliance has caused no prejudice to the political subdivision. Franklin v. City of Omaha, 230 Neb. 598, 432 N.W.2d 808 (1988); West Omaha Inv. v. S.I.D. No. 48, 227 Neb. 785, 420 N.W.2d 291 (1988); Chicago Lumber Co. v. School Dist. No. 71, 227 Neb. 355, 417 N.W.2d 757 (1988).

The filing of a notice of claim under the Political Subdivisions Tort Claims Act is a condition precedent to the institution of suit for an alleged tort against a political subdivision. All that is necessary to be included in a claim under this act is a recitation of the time and place of the occurrence giving rise to the claim and such other facts pertinent to the claim as are known to the claimant; it is not necessary that the claim contain the amount of damages or loss. West Omaha Inv. v. S.I.D. No. 48, 227 Neb. 785, 420 N.W.2d 291 (1988).

The notice required by this section does not have to state the indicated information, circumstances, or facts with the fullness or precision required in a pleading. Chicago Lumber Co. v. School Dist. No. 71, 227 Neb. 355, 417 N.W.2d 757 (1988).

A notice of a possible future claim does not satisfy the requirements of the statute. Peterson v. Gering Irr. Dist., 219 Neb. 281, 363 N.W.2d 145 (1985).

A substantial compliance analysis is applied when there is a question about whether the content of the required claim meets the requirements of the statute; however, if the notice is not filed with the person designated by statute as the authorized recipient, a substantial compliance analysis is not applicable. Lowe v. Lancaster Cty. Sch. Dist. 0001, 17 Neb. App. 419, 766 N.W.2d 408 (2009).

The filing requirement of this section constitutes a "procedural precedent" to the commencement of a judicial action. Lowe v. Lancaster Cty. Sch. Dist. 0001, 17 Neb. App. 419, 766 N.W.2d 408 (2009).

There is no statutory requirement that a claim filed pursuant to the Political Subdivisions Tort Claims Act need be addressed to a particular individual. Lowe v. Lancaster Cty. Sch. Dist. 0001, 17 Neb. App. 419, 766 N.W.2d 408 (2009).

A motorist's letter to the city substantially complied with the notice provisions of the Political Subdivisions Tort Claims Act, such that the motorist could maintain a negligence action against the city to recover damages for injuries he sustained in a motor vehicle accident with a city employee, where the letter stated the date, location, and circumstances of the accident, that the motorist suffered personal injuries as a result of the accident, and that the letter served as notice to the city under the act. Villanueva v. City of South Sioux City, 16 Neb. App. 288, 743 N.W.2d 771 (2008).

Notification to the insurance carrier of a political subdivision alone is insufficient to constitute substantial compliance with the notice provision of the Political Subdivisions Tort Claims Act. Written notice must be sent to a person or entity designated in the act. The filing of a notice of claim under the Political Subdivisions Tort Claims Act is a condition precedent to the institution of a suit to which the act applies. The partial payment of an insurance claim by a political subdivision's insurer standing alone is insufficient to create a question of fact precluding summary judgment as to whether the political subdivision is equitably estopped to assert the 1-year filing requirement. Keene v. Teten, 8 Neb. App. 819, 602 N.W.2d 29 (1999).

3. Affirmative defense

The filing or presentment of a claim under the Political Subdivisions Tort Claims Act is a condition precedent to commencement of a negligence action against a political subdivision. Noncompliance with the notice requirements is an available defense to a political subdivision, provided it is raised as an affirmative defense. Polinski v. Omaha Pub. Power Dist., 251 Neb. 14, 554 N.W.2d 636 (1996).

A general denial in a political subdivision's answer does not raise the issue of noncompliance, which must be raised as an affirmative defense specifically expressing the plaintiff's noncompliance with this section. Schoemaker v. Metropolitan Utilities Dist., 245 Neb. 967, 515 N.W.2d 675 (1994).

A general denial in a political subdivision's answer does not raise the issue of noncompliance, which must be raised as an affirmative defense specifically expressing plaintiff's noncompliance with the notice requirement of this section. Miles v. Box Butte County, 241 Neb. 588, 489 N.W.2d 829 (1992).

A political subdivision must raise an affirmative defense by specifically expressing the plaintiff's noncompliance with the notice requirement. Once the noncompliance issue is properly raised, the plaintiff has the burden to show compliance with the notice requirement. Millman v. County of Butler, 235 Neb. 915, 458 N.W.2d 207 (1990).

Noncompliance with the notice requirement of this section must be raised as an affirmative defense and specifically alleged. A plaintiff has a limited right to commence an action under the Political Subdivisions Tort Claims Act in the form of a precedent filed claim prescribed by this section. Knight v. Hays, 4 Neb. App. 388, 544 N.W.2d 106 (1996).