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When Has a Plaintiff Properly Complied with Notice in a Torts Case?

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On Nymatore v. Schuerman, (25 Neb. App. 209) the Nebraska Court of Appeals answers that question in an appeal of the grant of summary judgment.

On June 19, 2015, Eunice Nyamatore (“Nymatore”) was a passenger on a bus owned and operated by the Omaha Transit Authority (“OTA”). The bus was involved in an accident, and Nyamatore suffered injuries as a result of the accident. OTA alleged as an affirmative defense that Nyamatore failed to comply with the Political Subdivisions Tort Claims Act (“PSTCA”), thereby barring her claim. OTA filed a motion for summary judgment on July 1, 2016. The district court held a hearing on the motion on August 19. On September 6, the district court entered an order granting OTA’s motion for summary judgment. Nyamatore appealed.

The PSTCA has specific rules for notice. All tort claims under the PSTCA shall be filed with the official whose duty it is to maintain the official records of the political subdivision. It is the duty of the official with whom the claim is filed to present the claim to the governing body. All claims shall be in writing and include the time and place of the incident leading to the claim and such other facts pertinent to the claim as are known to the claimant. OTA says Nymatore’s notice did not comply.

In this case, OTA, in its answer to Nymatore’s claim, mentioned her non-compliance. That shifted the burden to Nymatore to show that she did comply. The case that governs here also involved the OTA as the defendant. In that case, the plaintiff delivered the notice of the claim to the director of human resources, rather than the person in charge of records—just like Nymatore did.

Nyamatore concedes that she did not forward her letter to the correct individual at OTA. However, Nyamatore argues that she substantially complied with the PSTCA because OTA was put on notice with the letter. The court has expressly held that if the notice is not filed with the person designated by statute as the authorized recipient, a substantial compliance analysis is not applicable.

Nyamatore failed to present any evidence that she complied with the notice requirements of the PSTCA. Therefore, we find that the district court did not err in granting summary judgment in favor of OTA.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado.

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