(Ga. L. 1899, p. 74, § 1; Civil Code 1910, § 910; Code 1933, § 69-308; Ga. L. 1953, Ex. Sess., p. 338, § 1; Ga. L. 1956, p. 183, § 1; Ga. L. 2014, p. 125, § 1/HB 135.)
Law reviews.- For article, "Georgia Municipal Tort Liability: Ante Litem Notice," see 4 Ga. L. Rev. 134 (1969). For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981). For article surveying developments in Georgia torts law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 247 (1981). For annual survey of local government law, see 35 Mercer L. Rev. 233 (1983). For annual survey of torts law, see 35 Mercer L. Rev. 291 (1983). For article, "Defending the Lawsuit: A First-Round Checklist," see 22 Ga. St. B. J. 24 (1985). For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986). For annual survey article discussing local government law, see 51 Mercer L. Rev. 397 (1999). For annual survey article on local government law, see 52 Mercer L. Rev. 341 (2000). For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001). For survey article on local government law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 353 (2003). For annual survey of local government law, see 56 Mercer L. Rev. 351 (2004). For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005). For annual survey of local government law, see 58 Mercer L. Rev. 267 (2006). For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For survey article on local government law, see 60 Mercer L. Rev. 263 (2008). For annual survey on local government law, see 66 Mercer L. Rev. 135 (2014). For annual survey on trial practice and procedure, see 66 Mercer L. Rev. 211 (2014). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015). For annual survey on trial practice and procedure, see 67 Mercer L. Rev. 257 (2015). For annual survey on local government law, see 68 Mercer L. Rev. 199 (2016). For annual survey on labor and employment law, see 69 Mercer L. Rev. 141 (2017). For annual survey on local government law, see 69 Mercer L. Rev. 205 (2017). For note, "Taking a Toll on the Equities: Governing the Effect of the PLRA'S Exhaustion Requirements on State Statutes of Limitations," 47 Ga. L. Rev. 1321 (2013).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality.
- O.C.G.A. § 36-33-5 does not violate the constitutional guarantees of either due process or equal protection. Shoemaker v. Aldmor Mgt., Inc., 249 Ga. 430, 291 S.E.2d 549 (1982).
This section is in derogation of the common law and should be strictly construed as against the municipality. Maryon v. City of Atlanta, 149 Ga. 35, 99 S.E. 116 (1919); Scearce v. Mayor of Gainesville, 33 Ga. App. 411, 126 S.E. 883, cert. denied, 33 Ga. App. 829 (1925); City of Atlanta v. Hawkins, 45 Ga. App. 847, 166 S.E. 262 (1932); City of Rome v. Stone, 46 Ga. App. 259, 167 S.E. 325 (1933); Jones v. Mayor of Savannah, 52 Ga. App. 537, 184 S.E. 353 (1936); Mayor of Buford v. Light, 65 Ga. App. 99, 15 S.E.2d 459 (1941); City of Atlanta v. J.J. Black & Co., 110 Ga. App. 667, 139 S.E.2d 515 (1964); Bush v. City of Albany, 125 Ga. App. 558, 188 S.E.2d 245 (1972); Hicks v. City of Atlanta, 154 Ga. App. 809, 270 S.E.2d 58 (1980).
Purpose of this section was simply to give to the municipality notice that the citizen or property owner has a grievance against the municipality. Carruthers v. City of Hawkinsville, 171 Ga. 313, 155 S.E. 520 (1930), answer conformed to, 42 Ga. App. 476, 156 S.E. 634 (1931); City of Atlanta v. Blackmon, 50 Ga. App. 448, 178 S.E. 467 (1935); Jones v. Mayor of Savannah, 52 Ga. App. 537, 184 S.E. 353 (1936); Jones v. City Council, 100 Ga. App. 268, 110 S.E.2d 691 (1959); City of Fairburn v. Clanton, 102 Ga. App. 556, 117 S.E.2d 197 (1960); City of Atlanta v. J.J. Black & Co., 110 Ga. App. 667, 139 S.E.2d 515 (1964); Holland v. Calhoun, 114 Ga. App. 51, 150 S.E.2d 155, rev'd on other grounds, 222 Ga. 817, 152 S.E.2d 752 (1966); City of Atlanta v. Frank, 120 Ga. App. 273, 170 S.E.2d 265 (1969); Bush v. City of Albany, 125 Ga. App. 558, 188 S.E.2d 245 (1972); Dennis v. City of Palmetto, 130 Ga. App. 242, 202 S.E.2d 717 (1973); Washington v. City of Columbus, 136 Ga. App. 682, 222 S.E.2d 583 (1975).
Purpose and intent of the legislature in the adoption of O.C.G.A. § 36-33-5 was fourfold: (1) to afford the officials of an offending city opportunity to investigate the complaint at a time when the evidence relative thereto is calculated to be more readily available; (2) to afford the officials an opportunity, if the complaint relates to a continuing nuisance, to take proper steps to abate the nuisance before the effects thereof become great or far-reaching; (3) to bar a claimant's right of recovery for any and all claims arising by reasons of matters that may have transpired or existed giving rise to a cause of action on dates more than six months prior to the giving of the required ante litem notice; and (4) to afford the city an opportunity to negotiate a settlement of such claims as the city may determine to be meritorious before litigation is commenced, thus protecting the interests of the general public by reducing the exposure of the funds in the city treasury to depletion from growing claims for damages. City of Gainesville v. Moss, 108 Ga. App. 713, 134 S.E.2d 547 (1963), overruled on other grounds, City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994); Robinette v. Johnston, 637 F. Supp. 922 (M.D. Ga. 1986).
Notice requirement is a statute of limitations, and satisfaction of the requirement is a condition precedent to maintaining a lawsuit on a claim against a municipality. Everett v. Napper, 632 F. Supp. 1481 (N.D. Ga. 1986), aff'd in part, rev'd in part on other grounds, 833 F.2d 1507 (11th Cir. 1987).
Applicability to whistleblower claims.
- Like other statutes of limitations, this statute of limitations does not begin to run in the case of continuing torts until the injury is discovered; therefore, former jail inmates' suit against a town for compelling the inmates, while incarcerated, to perform clean-up work on a contaminated building was not time-barred. City of Forsyth v. Bell, 258 Ga. App. 331, 574 S.E.2d 331 (2002).
City employee who filed suit under the Georgia Whistleblower Act, O.C.G.A. § 45-1-4, seeking money damages, among other remedies, was not required to provide written notice of the employee's claim within six months of the alleged retaliation under the municipal ante litem notice statute, O.C.G.A. § 36-33-5, because the claim was not a negligence claim. West v. City of Albany, 300 Ga. 743, 797 S.E.2d 809 (2017).
Use of summary judgment.
- When property owners assert claims against a municipality, flexibility by the court is required in determining whether compliance with the ante litem notice requirements of O.C.G.A. § 36-33-5 is properly considered a matter in abatement which must be raised in a motion to dismiss under O.C.G.A. § 9-11-12; accordingly, consideration of the matter within the summary judgment context, pursuant to O.C.G.A. § 9-11-56, was proper because matters outside of the pleadings, including the owners' depositions, were considered. Davis v. City of Forsyth, 275 Ga. App. 747, 621 S.E.2d 495 (2005).
Purpose of notice requirement is to apprise city of claim in order that the city may determine whether or not to adjust the claim without suit. Tanner v. City of Gainesville, 162 Ga. App. 405, 290 S.E.2d 541 (1982); Jones v. City of Austell, 166 Ga. App. 808, 305 S.E.2d 653 (1983).
Notice not protected First Amendment speech.- Plaintiff's ante litem notice against the city did not constitute speech protected by the First Amendment. Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir. 1997).
Claim for attorney fees and costs.
- Plaintiff's failure to comply with the notice requirement of O.C.G.A. § 36-33-5 precluded the plaintiff's ability to sue for money damages in the form of attorney fees and costs of litigation under O.C.G.A. § 13-6-11. Dover v. City of Jackson, 246 Ga. App. 524, 541 S.E.2d 92 (2000).
Firefighters' request for costs of litigation, including attorney fees, was properly submitted to the jury in the firefighters' class action, challenging a promotional examination, as the firefighters were not statutorily required to give ante-litem notice to the city. City of Atlanta v. Bennett, 322 Ga. App. 726, 746 S.E.2d 198 (2013).
Identification with former
§ 15-10-16. - The Georgia Court of Appeals has identified former § 15-10-16, concerning actions against justices of the peace, with the municipal ante litem notice provision contained in O.C.G.A. § 36-33-5. Doss v. Long, 93 F.R.D. 112 (N.D. Ga. 1981).
O.C.G.A. § 36-33-5 provides that ante litem notice be given the city as a condition precedent to suit against the city. Jones v. City of Austell, 166 Ga. App. 808, 305 S.E.2d 653 (1983).
Effect of failure to comply.
- Failure to comply with the provisions of this law within the time required thereby is a bar to any right of action against a municipality, and the giving of such notice is a condition precedent to the bringing of any action against a municipality. Stambaugh v. City of Demorest, 221 Ga. 527, 145 S.E.2d 539 (1965); City of Atlanta v. Frank, 120 Ga. App. 273, 170 S.E.2d 265 (1969); Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969); Bituminous Cas. Corp. v. R.D.C., Inc., 334 F. Supp. 1163 (N.D. Ga. 1971); Dennis v. City of Palmetto, 130 Ga. App. 242, 202 S.E.2d 717 (1973); Goen v. City of Atlanta, 224 Ga. App. 484, 481 S.E.2d 244 (1997); Whipple v. City of Cordele, 231 Ga. App. 274, 499 S.E.2d 113 (1998); Stanford v. City of Manchester, 246 Ga. App. 129, 539 S.E.2d 845 (2000);.
Effect of section as conferring immunity.
- Before the enactment of former Code 1933, § 69-308 (see O.C.G.A. § 36-33-5) requiring a demand, the liability of every municipal corporation in Georgia, under former Code 1933, § 69-301 (see O.C.G.A. § 36-33-1), was unqualified and unconditional. By the enactment of former Code 1933, § 69-308 the unqualified liability of each municipal corporation became conditional upon the demand required by the statute. City of Atlanta v. Hudgins, 193 Ga. 618, 19 S.E.2d 508 (1942).
Elements of section.- This section consists of both a time limitation and a requirement of exhaustion of administrative remedies. Ehlers v. City of Decatur, 614 F.2d 54 (5th Cir. 1980).
No conflict with other sections.
- There is no conflict between the statute of limitation applicable to insurance suits against municipalities and the constitutional and statutory provisions relating to waiver of immunity. Cobb v. Board of Comm'rs of Rds. & Revenue, 151 Ga. App. 472, 260 S.E.2d 496 (1979).
Applies only against municipal corporations.
- By its plain terms, O.C.G.A. § 36-33-5(d) applies only against municipal corporations, whether under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., or otherwise. Foster v. Ga. Reg'l Transp. Auth., 297 Ga. 714, 777 S.E.2d 446 (2015).
Tort claims against city barred because of the failure to comply with ante-litem notice statute. Camp v. City of Columbus, 252 Ga. 120, 311 S.E.2d 834 (1984); Fulton v. City of Roswell, 982 F. Supp. 1472 (N.D. Ga. 1997).
When plaintiff failed to give the required notice of the plaintiff's state tort claims against a city, plaintiff's state tort claims against the city were barred as a matter of law. Young v. City of Atlanta, 631 F. Supp. 1498 (N.D. Ga. 1986).
In a civil rights action, plaintiff was awarded attorney's fees and costs incident to the assertion of a frivolous defense by the defendant-city that dismissal was appropriate because the city had not received ante litem notice of the suit. Booker v. City of Atlanta, 586 F. Supp. 340 (N.D. Ga. 1984), aff'd, 827 F.2d 774 (11th Cir. 1987).
Applicability of section to 42 U.S.C.
§ 1983 actions. - Action against city under 42 U.S.C. § 1983 is materially different from a negligence suit required to be submitted for adjustment under O.C.G.A. § 36-33-5; therefore § 1983 provides a remedy independent of any provided by state law and, consequently, the ante litem notice requirement does not apply to § 1983 actions. Williams v. Posey, 475 F. Supp. 133 (M.D. Ga. 1979); Ehlers v. City of Decatur, 614 F.2d 54 (5th Cir. 1980); Robinette v. Johnston, 637 F. Supp. 922 (M.D. Ga. 1986).
Requirement of notice in O.C.G.A § 36-33-5 does not apply to an action brought under 42 U.S.C. § 1983. City of Atlanta v. J.A. Jones Constr. Co., 195 Ga. App. 72, 392 S.E.2d 564 (1990), rev'd and remanded on other grounds, 260 Ga. 658, 398 S.E.2d 369 (1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126 (1991).
Trial court erred in holding that plaintiff's action against the city was barred by the plaintiff's failure to give ante litem notice since the notice provisions of O.C.G.A. § 36-33-5 do not apply to actions filed pursuant to 42 U.S.C. § 1983. Armour v. Davidson, 203 Ga. App. 12, 416 S.E.2d 92, cert. denied, 202 Ga. App. 905, S.E.2d (1992).
Former psychiatric inmate's pro se complaint against a city in which the inmate alleged civil rights and other violations was properly dismissed based on the inmate's failure to comply with the ante litem notice provisions of O.C.G.A. § 36-33-5. Although the provisions did not apply to actions filed pursuant to 42 U.S.C. § 1983, the complaint had not been filed pursuant to § 1983, and the inmate had not alleged any facts that would give rise to § 1983 liability. White v. City of Atlanta Police Dep't, 289 Ga. App. 575, 657 S.E.2d 545 (2008).
Notice not shown.
- In a nuisance suit brought by homeowners against a city, it was proper to grant the city's motion for judgment notwithstanding the verdict as to one of the homeowners on the ground that the homeowner had not given the ante litem notice required by O.C.G.A. § 36-33-5(b); the city had not stipulated that such notice had been given, and although ante litem notice given by the homeowner's spouse might have been sufficient to apprise the city of the homeowner's claim, the homeowners had not cited to where in the record the spouse's ante litem notice appeared. City of Atlanta v. Broadnax, 285 Ga. App. 430, 646 S.E.2d 279 (2007), cert. denied, No. S07C1445, 2007 Ga. LEXIS 615, 648 (Ga. 2007), overruled on other grounds, Royal Capital Dev. LLC v. Md. Cas. Co., 291 Ga. 262, 728 S.E.2d 234 (2012).
Contract not shown.
- Developer which claimed that a mayor and council had breached a contract by delaying the provision of water to a subdivision had not shown the existence of a contract that would preclude the need for ante litem notice; the town had voted to construct a water line, but had not committed to a specific date for completion, and there was no other evidence that the parties had reached a meeting of the minds as to the time for installation. King v. Comfort Living, Inc., 287 Ga. App. 337, 651 S.E.2d 484 (2007).
Imposition by state of conditions precedent to civil rights suit.- By its terms this section applies to claims for money damages on account of negligence attributable to the municipality. Under 42 U.S.C. § 1983, plaintiff must prove that some policy, practice, ordinance, or regulation of the city has deprived plaintiff of plaintiff's rights under the Constitution of the United States. Williams v. Posey, 475 F. Supp. 133 (M.D. Ga. 1979).
Section 1983 plaintiff to be given benefit of effected toll.- Although plaintiffs need not comply with state exhaustion requirements before filing claims under 42 U.S.C. § 1983 in federal court, nothing prevents the plaintiffs from so doing; and given that plaintiffs may, if the plaintiffs choose, seek to exhaust state administrative remedies, the rule that federal courts must employ the applicable state statute of limitations in § 1983 cases clearly requires federal courts to give a § 1983 plaintiff the benefit of any toll effected by plaintiff's compliance with a state exhaustion requirement. Lawson v. Glover, 957 F.2d 801 (11th Cir. 1987).
Effect on special Act.
- When at the time of enactment of a special law amending a city charter, providing that no suit for injury to person or property could be maintained against the city unless within 90 days from such injury written notice was given, there existed a general law, this section. This general law provided for the case covered by the special law, and the latter was repugnant to Ga. Const. 1877, Art. I, Sec. IV, Para. I (see now Ga. Const. 1983, Art. III, Sec. VI, Para. IV), and therefore void. City of Atlanta v. Hudgins, 193 Ga. 618, 19 S.E.2d 508 (1942).
Insurer of city not agent for purposes of notice.
- Contract between a city and the city's insurer does not convert the insurer into the agent of the city for the purpose of ante litem notice required by O.C.G.A. § 36-33-5; thus, notice to a city's insurer is not substantial compliance with the requirement of notice to the governing authority of the municipality. City of LaGrange v. USAA Ins. Co., 211 Ga. App. 19, 438 S.E.2d 137 (1993); Evans v. City of Covington, 240 Ga. App. 373, 523 S.E.2d 594 (1999).
Effect of insurance statute.
- Former Code 1933, § 69-308 (see now O.C.G.A. § 36-33-5) was still the law irrespective of insurance coverage, and it was not changed by former Code 1933, § 56-2437 (see now O.C.G.A. § 33-24-51). Perdue v. City Council, 137 Ga. App. 702, 225 S.E.2d 62 (1976).
Similarity to presentment of claims against county.
- While former Code 1933, § 69-308 (see now O.C.G.A. § 36-33-5), providing for the filing of a claim against a municipality before suit against such municipality, was unlike the provisions of former Code 1933, § 23-1602 (see now O.C.G.A § 36-11-1) relative to the presentment of claims against a county, the objects and purposes of these two statutes were similar. Davis v. Cobb County, 65 Ga. App. 533, 15 S.E.2d 814 (1941).
Words "any suit" (now "any action") clearly mean that in every suit wherein such damages are sought, notice shall be given. Thompson v. City of Atlanta, 219 Ga. 190, 132 S.E.2d 188 (1963).
Generally accepted meaning of the phrase "governing authority" or "governing body," in reference to the operation of city or county governments, is a council or board performing legislative functions. Peek v. City of Albany, 101 Ga. App. 564, 114 S.E.2d 451 (1960).
Terminology synonymous.
- General character of the claim is all that is necessary; when the word "claim," and the word "suit," and the words "cause of action," appear in this section, those words are synonymous. Carruthers v. City of Hawkinsville, 171 Ga. 313, 155 S.E. 520 (1930), answer conformed to, 42 Ga. App. 476, 156 S.E. 634 (1931).
"Claim" and "demand for payment" as used in this section have the same meaning. The presentation of the claim for adjustment is a condition precedent to bringing the action. Jones v. City Council, 100 Ga. App. 268, 110 S.E.2d 691 (1959).
Applicability to counterclaims.
- Defendant property-lessor and business operator's failure to give adequate ante litem notice for counterclaims against city alleging tortious interference with their business relationship warranted dismissal of these counterclaims. Sims v. City of Alpharetta, 207 Ga. App. 411, 428 S.E.2d 94 (1993).
Applicability to breach of contract.
- Ante litem notice provisions of this section do not apply to claims arising out of a breach of contract. City of Atlanta v. J.J. Black & Co., 110 Ga. App. 667, 139 S.E.2d 515 (1964).
Summary judgment for a city in a police officer's breach of contract claim was error because O.C.G.A. § 36-33-5 did not apply to contract suits, and the police officer's failure to provide ante litem notice to the city in a contract action did not bar the suit. Neely v. City of Riverdale, 298 Ga. App. 884, 681 S.E.2d 677 (2009), cert. denied, No. S09C1925, 2010 Ga. LEXIS 28 (Ga. 2010).
Subcontractor seeking to recover against a city for payment for work performed under a subcontract under theories of unjust enrichment, quantum merit, and implied obligation to pay was not required to comply with the ante litem notice requirements before filing suit because O.C.G.A. § 36-33-5(a) applied only to tort claims regarding personal injury or property damage. Contrary language in Jacks v. City of Atlanta, 284 Ga. App. 200 (2007),was disapproved. City of College Park v. Sekisui SPR Ams., LLC, 331 Ga. App. 404, 771 S.E.2d 101 (2015), cert. denied, No. S15C1141, 2015 Ga. LEXIS 471 (Ga. 2015).
Applicability to action for illegal imprisonment.
- This section applies to a claim against a city for illegal imprisonment under sentence from a recorder's court. Marks v. City of Rome, 145 Ga. 399, 89 S.E. 324 (1916).
Litigant seeking injunctive relief is not bound by the requirements of this statute. Ehlers v. City of Decatur, 614 F.2d 54 (5th Cir. 1980).
Applicability to out-of-state municipalities.- This section applies not only to municipalities located in the state, but also to any other municipality. Bituminous Cas. Corp. v. R.D.C., Inc., 334 F. Supp. 1163 (N.D. Ga. 1971).
Applicability to zoning disputes.
- Ante litem notice provisions applied to a claim for damages arising out of a zoning dispute. City of Walnut Grove v. Questco, Ltd., 275 Ga. 266, 564 S.E.2d 445 (2002).
Property cannot be encumbered.
- City board of education has no authority to place an encumbrance upon articles which the city had unconditionally purchased on account several months previously, and which the city had installed as necessary to the operation of the schools. Southern Sch. Supply Co. v. City of Abbeville, 34 Ga. App. 93, 128 S.E. 231 (1925).
O.C.G.A. § 36-33-5, taken together with City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994) does not stand for the proposition that a municipality's liability for the effects of a continuing nuisance or trespass is truncated by ante litem notice; the trial court did not err in allowing an owner to present evidence of damages to the owner's property due to a city's abatable nuisance for the period after the owner presented ante litem notice to the city. City of Atlanta v. Landmark Envtl. Indus., 272 Ga. App. 732, 613 S.E.2d 131 (2005).
Cited in Carruthers v. City of Hawkinsville, 42 Ga. App. 476, 156 S.E. 634 (1931); City of Atlanta v. Dinkins, 46 Ga. App. 19, 166 S.E. 429 (1932); Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 (1934); Lawrence v. City of La Grange, 63 Ga. App. 587, 11 S.E.2d 696 (1940); Cannon v. City of Macon, 81 Ga. App. 310, 58 S.E.2d 563 (1950); City of Macon v. Yaughn, 83 Ga. App. 610, 64 S.E.2d 369 (1951); City of Decatur v. Robertson, 85 Ga. App. 747, 70 S.E.2d 135 (1952); Duren v. City of Thomasville, 92 Ga. App. 706, 89 S.E.2d 840 (1955); Nimmons v. City of La Grange, 94 Ga. App. 511, 95 S.E.2d 314 (1956); City of Griffin v. McKneely, 101 Ga. App. 811, 115 S.E.2d 463 (1960); Pettaway v. City of Albany, 105 Ga. App. 739, 125 S.E.2d 568 (1962); Haygood v. City of Marietta, 108 Ga. App. 99, 131 S.E.2d 856 (1963); City of Douglas v. Cartrett, 109 Ga. App. 683, 137 S.E.2d 358 (1964); Allison v. English, 116 Ga. App. 318, 157 S.E.2d 324 (1967); Campbell v. City of Atlanta, 117 Ga. App. 824, 162 S.E.2d 213 (1968); Phillips v. Town of Fort Oglethorpe, 118 Ga. App. 62, 162 S.E.2d 771 (1968); City of Atlanta v. Mapel, 121 Ga. App. 567, 174 S.E.2d 599 (1970); Mayor of Athens v. Schaeffer, 122 Ga. App. 729, 178 S.E.2d 764 (1970); Copeland v. Young, 133 Ga. App. 54, 209 S.E.2d 719 (1974); City of E. Point v. Terhune, 144 Ga. App. 865, 242 S.E.2d 728 (1978); Lockaby v. City of Cedartown, 151 Ga. App. 281, 259 S.E.2d 683 (1979); City Council v. Lee, 153 Ga. App. 94, 264 S.E.2d 683 (1980); Claxton Poultry Co. v. City of Claxton, 155 Ga. App. 308, 271 S.E.2d 227 (1980); Acker v. City of Elberton, 176 Ga. App. 580, 336 S.E.2d 842 (1985), overruled on other grounds by West v. City of Albany, 2017 Ga. LEXIS 177 (Ga. 2017); Precise v. City of Rossville, 196 Ga. App. 870, 397 S.E.2d 133 (1990); Williams v. Department of Human Resources, 234 Ga. App. 638, 507 S.E.2d 230 (1998); City of Gainesville v. Waters, 258 Ga. App. 555, 574 S.E.2d 638 (2002); Scott v. City of Valdosta, 280 Ga. App. 481, 634 S.E.2d 472 (2006); SunTrust Bank v. Hightower, 291 Ga. App. 62, 660 S.E.2d 745 (2008); FDIC v. Loudermilk, 305 Ga. 558, 826 S.E.2d 116 (2019); Nugent v. Myles, 350 Ga. App. 442, 829 S.E.2d 623 (2019); Klingensmith v. Long County, 352 Ga. App. 21, 833 S.E.2d 608 (2019); Dep't of Pub. Safety v. Ragsdale, 308 Ga. 210, 839 S.E.2d 541 (2020).
Sufficiency of Notice
Substantial compliance with this section is all that is required. Carruthers v. City of Hawkinsville, 171 Ga. 313, 155 S.E. 520 (1930), answer conformed to, 42 Ga. App. 476, 156 S.E. 634 (1931); Mayor of Savannah v. Helmken, 43 Ga. App. 84, 158 S.E. 64 (1931); City of Atlanta v. Hawkins, 45 Ga. App. 847, 166 S.E. 262 (1932); City of Rome v. Stone, 46 Ga. App. 259, 167 S.E. 325 (1933); Lundy v. City Council, 51 Ga. App. 655, 181 S.E. 237 (1935); Jones v. Mayor of Savannah, 52 Ga. App. 537, 184 S.E. 353 (1936); Olmstead v. Mayor of Savannah, 57 Ga. App. 815, 196 S.E. 923 (1938); Mayor of Buford v. Light, 65 Ga. App. 99, 15 S.E.2d 459 (1941); City of Acworth v. McLain, 99 Ga. App. 407, 108 S.E.2d 821 (1959); Caldwell v. Mayor of Savannah, 101 Ga. App. 683, 115 S.E.2d 403 (1960); Taylor v. King, 104 Ga. App. 589, 122 S.E.2d 265 (1961); City of Atlanta v. Frank, 120 Ga. App. 273, 170 S.E.2d 265 (1969); Bush v. City of Albany, 125 Ga. App. 558, 188 S.E.2d 245 (1972); City of Claxton v. Claxton Poultry Co., 134 Ga. App. 679, 215 S.E.2d 718 (1975); City of Arlington v. Smith, 238 Ga. 50, 230 S.E.2d 863 (1976); Hicks v. City of Atlanta, 154 Ga. App. 809, 270 S.E.2d 58 (1980); City of Columbus v. Preston, 155 Ga. App. 379, 270 S.E.2d 909 (1980); Jones v. City of Austell, 166 Ga. App. 808, 305 S.E.2d 653 (1983).
Property owners did not substantially comply with the notice requirement of O.C.G.A. § 36-33-5(b) in the owners' assertion, by amendment to the owners' complaint, of a personal injury claim against a municipality, arising from the continued backup of sewage on the owners' property, as the only indication in the owners' ante litem notice that the owners were seeking personal injuries was a statement that the sewage backup had "caused an ongoing health hazard"; such did not state the "extent of the injury," including the "nature, character, and particulars of the injury," and those personal injury claims were properly barred. Davis v. City of Forsyth, 275 Ga. App. 747, 621 S.E.2d 495 (2005).
Trial court erred in granting a city summary judgment because city employees substantially complied with ante litem notice requirements; a letter the employees' acting attorney sent to the mayor sufficed to place the city on notice of the general character of the complaint, namely the wrongful terminations, and, in a general way, of the time, place, and extent of the injury. Owens v. City of Greenville, 290 Ga. 557, 722 S.E.2d 755 (2012).
Trial court erred in denying a city's motion for judgment on the pleadings because it was undisputed that the property owner failed to serve either the mayor, or the chairperson of the city council or city commission; thus, the owner did not comply with the ante litem notice statute, O.C.G.A. § 36-33-5(f), which was fatal to the owner's claim. City of Albany v. GA HY Imports, LLC, 348 Ga. App. 885, 825 S.E.2d 385 (2019).
Strict compliance required.
- Georgia General Assembly intended to reduce uncertainty by limiting the pool of individuals or entities upon which ante litem notice could be served for purposes of satisfying the notice requirements of O.C.G.A. § 36-33-5(f); in other words, the court presumed the General Assembly meant what it said and said what it meant. Strict compliance with O.C.G.A. § 36-33-5(f) is required. City of Albany v. GA HY Imports, LLC, 348 Ga. App. 885, 825 S.E.2d 385 (2019).
Mere notice insufficient.
- Mere notice of injury, although in writing and announcing an intention to file suit, does not constitute a presentation of the claim or demand to the governing authorities of the municipality for adjustment so as to meet the requirements of this section. Jones v. City Council, 100 Ga. App. 268, 110 S.E.2d 691 (1959); Chiles v. City of Smyrna, 146 Ga. App. 260, 246 S.E.2d 177 (1978).
Notice of intention to sue held sufficient.
- Written notice to a municipal corporation of the intention of a person injured to bring suit against the municipality at a certain term of court, to recover for alleged injuries, is a presentation in writing of such claim to the governing authority of the municipal corporation for adjustment as required by this section. Lewis v. City of Moultrie, 31 Ga. App. 712, 121 S.E. 843, cert. denied, 31 Ga. App. 812 (1924), overruled on other grounds, Tanner v. City of Gainesville, 162 Ga. App. 405, 290 S.E.2d 541 (1982).
Claimant substantially complied with the statute as the claimant's letter to the defendant city included the elements of time, place, and extent of the injury since: (1) the termination of a contract between the parties was the subject of the letter and, therefore, the nature and the extent of the injury were communicated; (2) the plaintiff specifically referenced a conversation between a city commissioner and the plaintiff's president, so the elements of time and place were included; and (3) the letter even listed potential causes of action. Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220 (11th Cir. 2002).
Hazard notice filed by city not sufficient.
- Issuance of a "Hazard Notice" by the city against the plaintiff did not constitute an ante litem notice on behalf of the plaintiff which would satisfy the notice requirements of O.C.G.A. § 36-33-5. Brown v. City of Chamblee, 211 Ga. App. 45, 438 S.E.2d 396 (1993).
It is necessary only that the city shall be put on notice of the general character of the complaint and, in a general way, of time, place, and extent of injury. Carruthers v. City of Hawkinsville, 171 Ga. 313, 155 S.E. 520 (1930), answer conformed to, 42 Ga. App. 476, 156 S.E. 634 (1931); City of Rome v. Stone, 46 Ga. App. 259, 167 S.E. 325 (1933); City of Atlanta v. Blackmon, 50 Ga. App. 448, 178 S.E. 467 (1935); Lundy v. City Council, 51 Ga. App. 655, 181 S.E. 237 (1935); Jones v. Mayor of Savannah, 52 Ga. App. 537, 184 S.E. 353 (1936); Mayor of Buford v. Light, 65 Ga. App. 99, 15 S.E.2d 459 (1941); Caldwell v. Mayor of Savannah, 101 Ga. App. 683, 115 S.E.2d 403 (1960); City of Atlanta v. J.J. Black & Co., 110 Ga. App. 667, 139 S.E.2d 515 (1964); City of Atlanta v. Frank, 120 Ga. App. 273, 170 S.E.2d 265 (1969); City of Columbus v. Preston, 155 Ga. App. 379, 270 S.E.2d 909 (1980).
What is substantial compliance.
- Requirements of this section are sufficiently complied with when the notice gives information sufficiently definite to locate the property alleged to have been injured, the amount of damages claimed, and sufficient data to enable the city authorities to examine into the alleged injuries and determine whether the claim should be adjusted without suit. Kennedy v. Mayor of Savannah, 8 Ga. App. 98, 68 S.E. 652 (1910); Mayor of Macon v. Stringfield, 16 Ga. App. 480, 85 S.E. 684 (1915); Marks v. City of Rome, 145 Ga. 399, 89 S.E. 324 (1916); City of Griffin v. Stewart, 19 Ga. App. 817, 92 S.E. 400 (1917); Sirmans v. City of Ray City, 32 Ga. App. 430, 124 S.E. 60 (1924); Scearce v. Mayor of Gainesville, 33 Ga. App. 411, 126 S.E. 883, cert. denied, 33 Ga. App. 829 (1925); Carruthers v. City of Hawkinsville, 171 Ga. 313, 155 S.E. 520 (1930), answer conformed to, 42 Ga. App. 476, 156 S.E. 634 (1931); Jones v. Mayor of Savannah, 52 Ga. App. 537, 184 S.E. 353 (1936); Olmstead v. Mayor of Savannah, 57 Ga. App. 815, 196 S.E. 923 (1938); Aldred v. City of Summerville, 215 Ga. 651, 113 S.E.2d 108 (1960); Bush v. City of Albany, 125 Ga. App. 558, 188 S.E.2d 245 (1972).
Substantial compliance not shown.
- When appellant gave oral notice to a representative of the municipal corporation and documents prepared by city employees and the city's insurer were not presented to the city by the appellant as required by O.C.G.A. § 36-33-5, there was no proper ante litem notice. Clark v. City of Smyrna, 212 Ga. App. 598, 442 S.E.2d 461 (1994).
This section does not contemplate that notice shall be drawn with all technical niceties necessary in framing a declaration for the purpose of the law was simply to give to the municipality notice that the citizen or property owner has a grievance against the municipality and it is necessary only that the city be put on notice of the general character of the complaint and, in a general way, of the time, place, and extent of the injury. City of E. Point v. Christian, 40 Ga. App. 633, 151 S.E. 42 (1929); Carruthers v. City of Hawkinsville, 171 Ga. 313, 155 S.E. 520 (1930), answer conformed to, 42 Ga. App. 476, 156 S.E. 634 (1931); Mayor of Savannah v. Helmken, 43 Ga. App. 84, 158 S.E. 64 (1931); City of Rome v. Stone, 46 Ga. App. 259, 167 S.E. 325 (1933); Olmstead v. Mayor of Savannah, 57 Ga. App. 815, 196 S.E. 923 (1938); City of Dalton v. Joyce, 70 Ga. App. 557, 29 S.E.2d 112 (1944); City of Atlanta v. Frank, 120 Ga. App. 273, 170 S.E.2d 265 (1969); City of Columbus v. Preston, 155 Ga. App. 379, 270 S.E.2d 909 (1980).
Service of verbatim copy of petition sufficient notice.
- Service upon the municipal corporation of a verbatim copy of the petition which the person injured intends to file in a suit against the municipality, which states the time, place, and extent of the injuries complained of, accompanied by a letter from the plaintiff's attorneys to the clerk of the municipal corporation reciting the name of the case and stating that "we enclose herewith claim in the above-stated matter as required by law," is sufficient as a presentation of the claim for adjustment. Lewis v. City of Moultrie, 31 Ga. App. 712, 121 S.E. 843, cert. denied, 31 Ga. App. 812 (1924), overruled on other grounds, Tanner v. City of Gainesville, 162 Ga. App. 405, 290 S.E.2d 541 (1982).
Absolute exactness of notice not necessary.
- When the notice states the time, place, manner, circumstances, and details of the accident causing the injuries for which the claim was made and the acts of negligence charged against the municipality as well as the amount claimed as damages, this is a sufficient compliance with the statute, and the fact that the claim filed with the municipality states that the plaintiffs claimed "35,000 from said municipality," and the action was filed jointly against the municipality and an individual is immaterial. City of Dalton v. Joyce, 70 Ga. App. 557, 29 S.E.2d 112 (1944).
This section recognizes, by the use of the words "as near as practicable," that absolute exactness need not be had; a substantial compliance with the section is all that is required; and, when the notice describes the time, place, and extent of the injury with reasonable certainty, that notice will be sufficient. City of E. Point v. Christian, 40 Ga. App. 633, 151 S.E. 42 (1929); City of Atlanta v. Frank, 120 Ga. App. 273, 170 S.E.2d 265 (1969).
Words "as near as practicable," as used in this section do not make any difference in their qualification between "time, place, and extent of such injury," and "the negligence which caused the same." City of Atlanta v. Blackmon, 50 Ga. App. 448, 178 S.E. 467 (1935).
Slight inaccuracies of the facts will not render the notice invalid. City of Fairburn v. Clanton, 102 Ga. App. 556, 117 S.E.2d 197 (1960).
Variance between petition and notice.
- If notice and petition correspond in all substantial respects as to matters, information of which is required to be given, the variance is immaterial. Langley v. City Council, 118 Ga. 590, 45 S.E. 486 (1903); Smith v. City of Elberton, 5 Ga. App. 286, 63 S.E. 48 (1908); Carruthers v. City of Hawkinsville, 171 Ga. 313, 155 S.E. 520 (1930), answer conformed to, 42 Ga. App. 476, 156 S.E. 634 (1931).
Petition need not actually follow the notice, and an immaterial variance between the two as to time, place, or extent of injury will not amount to a fatal variance. Mayor of Macon v. Stringfield, 16 Ga. App. 480, 85 S.E. 684 (1915); Williamson v. Mayor of Savannah, 19 Ga. App. 784, 92 S.E. 291 (1917).
Notice need not be as clear and specific as petition.
- It would be entirely contrary to the purpose of this section to say that the negligence relied on must be as clearly and specifically set forth in the notice as in the petition; the object and purpose of the notice is merely to give the city an opportunity to investigate the matter in order to determine whether the city will pay without suit. City of Atlanta v. Blackmon, 50 Ga. App. 448, 178 S.E. 467 (1935).
Technical accuracy in filing claims is no longer necessary, and the old doctrine of strict and literal compliance, with the statute's attendant harsh and unfair results, has virtually disappeared from the law. What is required by this section is that there be substantial compliance with a demand or claim requirement. Bush v. City of Albany, 125 Ga. App. 558, 188 S.E.2d 245 (1972).
Notice not required to specify amount of damages.
- It is not a prerequisite to suit against a municipal corporation in this state, for injury to person or property, that the written notice required under this section should specify any amount of money claimed as damages. Maryon v. City of Atlanta, 149 Ga. 35, 99 S.E. 116 (1919); Maryon v. City of Atlanta, 23 Ga. App. 716, 99 S.E. 316 (1919); Mayor of Savannah v. Clarke, 42 Ga. App. 275, 155 S.E. 790 (1930); Mayor of Waynesboro v. Hargrove, 111 Ga. App. 26, 140 S.E.2d 286 (1965).
For contrary view that notice must specify amount of damages, see Mayor of Macon v. Stringfield, 16 Ga. App. 480, 85 S.E. 684 (1915); Williamson v. Mayor of Savannah, 19 Ga. App. 784, 92 S.E. 291 (1917); Scearce v. Mayor of Gainesville, 33 Ga. App. 411, 126 S.E. 883, cert. denied, 33 Ga. App. 829 (1925).
Ante litem notice is sufficient without inclusion of monetary amount. Tanner v. City of Gainesville, 162 Ga. App. 405, 290 S.E.2d 541 (1982).
Specific amount of monetary damages required.
- After the plaintiff was involved in a car accident with a police officer, the officer's motion to dismiss the plaintiff's complaint was properly granted because the plaintiff's notice did not substantially comply with the amendment to O.C.G.A. § 36-33-5 as the notice did not include any specific amount of monetary damages being sought from the officer that could constitute an offer of compromise; the amendment applied prospectively to all ante litem notices issued after the effective date of the amendment; and there was no constitutional violation for improper retrospective application of the amendment as the amendment affected only a procedure or remedy, and not any vested rights. Harrell v. City of Griffin, 346 Ga. App. 635, 816 S.E.2d 738 (2018), cert. denied, 2019 Ga. LEXIS 166 (Ga. 2019).
In the plaintiff's action for damages against the city and two of the city's employees after one of the city's firefighters was involved in a motor vehicle collision with the plaintiff, the trial court properly denied the city's motion to dismiss because the plaintiff's ante litem notice satisfied the plain language and purposes of O.C.G.A. § 36-33-5(e) as the notice stated that the plaintiff would seek to recover $1,000,000 in monetary damages, and that was a specific amount of monetary damages that could constitute an offer of compromise. City of Lafayette v. Chandler, 354 Ga. App. 259, 840 S.E.2d 638 (2020).
Trial court did not err in concluding that the appellants' ante litem notices failed to comply with O.C.G.A. § 36-33-5(e) and in dismissing the claim for monetary damages because the appellants were required to include a specific amount of monetary damages being sought from the city and it was undisputed that none of the notices sent to the city included a claim for a specific amount of monetary damages. Wright v. City of Greensboro, 350 Ga. App. 685, 830 S.E.2d 228 (2019), cert. denied, No. S19C1468, 2020 Ga. LEXIS 30 (Ga. 2020).
Trial court did not err by dismissing the plaintiffs' personal injury action against the city for failure to comply with O.C.G.A. § 36-33-5 because the plaintiffs' notice's statement that the plaintiffs' claim likely exceeded $100,000 merely provided an estimate of potential damages and was not the specific amount of monetary damages being sought from the city as contemplated by the unambiguous language of the statute. Picklesimer v. City of Eatonton, Ga. App. , S.E.2d (Aug. 28, 2020).
Plaintiff not bound by amount claimed in notice.
- Addition of the amount is unnecessary and, if set forth, mere surplusage, and does not bar a recovery of a greater sum. Maryon v. City of Atlanta, 149 Ga. 35, 99 S.E. 116 (1919); Scearce v. Mayor of Gainesville, 33 Ga. App. 411, 126 S.E. 883, cert. denied, 33 Ga. App. 829 (1925).
It is not necessary that the plaintiff state any amount in the notice to meet the requirements of this section, and plaintiff is not bound by the amount of damages claimed in plaintiff's notice. City of Gainesville v. Moss, 108 Ga. App. 713, 134 S.E.2d 547 (1963), overruled on other grounds, City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994).
Words "extent of such injury" do not mean the amount of damages claimed in dollars and cents, but mean the nature, character, and particulars of the injury, and which should be stated "as near as practicable." Maryon v. City of Atlanta, 149 Ga. 35, 99 S.E. 116 (1919).
No need to disclose jurisdictional fact.
- Neither in the title nor in the body of this section is there any requirement that claimants shall disclose any jurisdictional fact. Carruthers v. City of Hawkinsville, 171 Ga. 313, 155 S.E. 520 (1930), answer conformed to, 42 Ga. App. 476, 156 S.E. 634 (1931).
Plaintiff must show "substantial compliance" with section.
- Under this section, it is a prerequisite to the recovery of money damages from a municipal corporation on account of an injury to person or property, that the plaintiff shall show a "substantial compliance" with the statute's provisions and not only that a written claim of the nature and contents specified shall have been presented before the suit to the governing authority of the municipality for adjustment, but that either the municipal authorities must have actually passed upon the claim, or more than 30 days must have elapsed between its presentation and the filing of the suit, within which the authorities failed to act upon it. City of La Fayette v. Rosser, 53 Ga. App. 228, 185 S.E. 377 (1936).
Three letters of protest to city department held sufficient.
- When an unsuccessful bidder sent 3 protest letters to a city's procurement department, and received no answer, the trial court correctly ruled that the three letters complied substantially with the requirements of O.C.G.A. § 36-33-5. City of Atlanta v. J.A. Jones Constr. Co., 195 Ga. App. 72, 392 S.E.2d 564 (1990), rev'd and remanded on other grounds, 260 Ga. 658, 398 S.E.2d 369 (1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126 (1991).
Letters held sufficient.
- As required by O.C.G.A. § 36-33-5(b), the November 24, 1997 letter to the city's attorney notified the city of the date of the fire (June 9, 1997), the location (the plaintiffs' home), the extent of injury (the home was completely destroyed), and the negligence that caused the injury (the fire department's failure to respond to the fire); thus, the letter clearly provided notice that the plaintiffs seek reimbursement for the loss of the plaintiffs' home, furnishings, and personal belongings. Adequate notice does not require itemization of all damages sought as a result of the city's negligence. Canberg v. City of Toccoa, 245 Ga. App. 75, 535 S.E.2d 854 (2000).
Landowners substantially complied with statutory ante litem requirements of O.C.G.A. § 36-33-5 as the letter the landowners sent to the city alleging damages from continuing nuisance the city allegedly maintained on the landowners property and that identified the nature and location of the damage, the cause, and the nature of the potential cause of action, sufficiently put the city on notice of the problem occurring on the landowners' property. City of Columbus v. Barngrover, 250 Ga. App. 589, 552 S.E.2d 536 (2001).
No precise standard for determining whether any given ante litem notice is substantively sufficient exists. Therefore, the trial court properly denied a city's motion to dismiss for failure to give proper ante litem notice because the landowners' letters were sufficient to put the city on notice of the general character of the complaint, namely the claim of a continuing nuisance on their property caused by the city's water drainage system, and in a general way, of the time, place, and extent of the injury, namely, the flooding was ongoing and that the damage amounted to a taking of their property. City of Greensboro v. Rowland, 334 Ga. App. 148, 778 S.E.2d 409 (2015), cert. denied, No. S16C0305, 2016 Ga. LEXIS 154 (Ga. 2016).
Notice found to be insufficient.
- Letter written by the plaintiff's son failed to present any claim or demand for adjustment and, therefore, did not satisfy the statutory requirement for a written demand prerequisite to an action for injury to person or property; buried as it was amid reference to a prior letter (that antedated the plaintiff's fall), the generally poor state of the sidewalks downtown, the financial ability of the city to repair the sidewalks, multiple instances of poor zoning ordinances, the responsiveness of elected officials to property owners, the lamented absence of building requirements and the need to enforce existing zoning ordinances, the bare mention of the plaintiff's arm needing surgery after plaintiff tripped on uneven concrete was not sufficient to put a reasonable recipient on notice that the injury specified would be pursued as a claim for money damages against the municipality requiring investigation, analysis, and perhaps pre-litigation adjustment. Woodall v. City of Villa Rica, 236 Ga. App. 788, 513 S.E.2d 525 (1999).
Because a driver failed to present sufficient record evidence that a city received timely ante litem notice that the driver sustained a personal injury, much less the nature, character, or particularities of any such injury, but the notice submitted merely established that the driver sustained property damage, the driver did not substantially comply with O.C.G.A. § 36-33-5(b); thus, the trial court properly granted the city summary judgment on that issue. Harris-Jackson v. City of Cochran, 287 Ga. App. 722, 652 S.E.2d 607 (2007).
Grant of summary judgment in favor of the city in negligence action was appropriate because the claimant failed to show that the claimant timely presented a written notice of the negligence claim to the city as required under O.C.G.A. § 36-33-5(b). An unauthenticated, purported notice did not create a genuine issue of material fact for summary judgment purposes. Jones v. City of Willacoochee, 299 Ga. App. 741, 683 S.E.2d 683 (2009).
Trial court did not err in granting a city's motion for summary judgment in a citizen's personal injury action because the citizen's ante litem notice was insufficient when although the notice gave the date and the particulars of the citizen's fall, the notice failed to properly or even generally identify where the incident actually occurred; while the citizen previously gave an oral report of the incident, which allowed the city to investigate the actual site of the fall, the citizen could not rely upon such oral notice or the city's earlier investigations and repairs to satisfy the requirements of O.C.G.A. § 36-33-5. Simmons v. Mayor of Savannah, 303 Ga. App. 452, 693 S.E.2d 517 (2010).
In a personal injury suit against a city, the trial court properly granted summary judgment in favor of the city because the notice the pedestrian provided under O.C.G.A. § 36-33-5 did not accurately identify the address for the missing water meter cover the pedestrian was alleged to have stepped into, thus, the notice failed to substantially comply with the statutory requirement. It is not the geographic proximity of the addresses that matters; rather, to substantially comply with the statute, O.C.G.A. § 36-33-5, the notice itself must provide enough information for a city to be able to properly investigate and adjust a claim pre-litigation. Williams v. City of Atlanta, 342 Ga. App. 470, 803 S.E.2d 614 (2017).
Plaintiff's civil negligence complaint against the city was properly dismissed because the plaintiff failed to include a specific amount of monetary damages being sought from the city pursuant to the ante litem notice requirements of O.C.G.A. § 36-33-5 as the notice the plaintiff provided was merely an estimate of potential damages, and the notice did not constitute a real offer of compromise which the city could have accepted; nothing in § 36-33-5 imposed an obligation on the city to notify the plaintiff that the plaintiff's notice was insufficient; and the fact that the city conducted a preliminary investigation of the plaintiff's claim and denied liability did not remedy the plaintiff's failure to comply with the requirements of the statute. Pickens v. City of Waco, 352 Ga. App. 37, 833 S.E.2d 713 (2019), cert. denied, No. S20C0323, 2020 Ga. LEXIS 415 (Ga. 2020).
Formalities of Notice
Required contents.
- Specified elements of notice are "the time, place, and extent of such injury, as nearly as practicable, and the negligence which caused the same." "Extent of such injury" means the nature, character, and particulars of the injury. Jones v. City of Austell, 166 Ga. App. 808, 305 S.E.2d 653 (1983).
O.C.G.A. § 36-33-5 requires a claimant to provide the relevant municipality with information about the events giving rise to a claimant's injuries as well as a demand for the specific amount of monetary damages the claimant is seeking for those injuries, which allows the municipality to make an informed decision about whether to accept the claimant's offer, make a counter-offer, or take other action to resolve the claim and thereby avoid costly, unnecessary litigation. The fact that a claimant is still undergoing medical treatment does not prevent the claimant from providing a demand for a specific monetary amount of damages as the claimant can include any prospective future costs into the specified monetary amount. Pickens v. City of Waco, 352 Ga. App. 37, 833 S.E.2d 713 (2019), cert. denied, No. S20C0323, 2020 Ga. LEXIS 415 (Ga. 2020).
Oral notice insufficient.
- Oral notice to the mayor and city manager, together with written notice to the municipality which was five days late, will not suffice. Allen v. City of Macon, 118 Ga. App. 88, 162 S.E.2d 783 (1968).
Oral notice to a municipal corporation or a representative thereof is not considered substantial compliance with the provisions of the statute. Gillingwater v. City of Valdosta, 177 Ga. App. 241, 339 S.E.2d 287 (1985).
Oral notice with appearance before council insufficient.
- Oral notices followed by actual appearance before the mayor and council of the city in official session as the city's governing body, and the officials' assurances of indemnification, will not suffice and cannot create an estoppel. Allen v. City of Macon, 118 Ga. App. 88, 162 S.E.2d 783 (1968).
Written notice addressed to municipality sufficient.
- Requirement that the ante litem notice be in writing addressed to the governing authority of the municipality is substantially complied with when the written notice is addressed to the municipality. City of Atlanta v. Frank, 120 Ga. App. 273, 170 S.E.2d 265 (1969).
In order for notice to be in compliance with this section, the notice must be addressed to and received by the municipality or one of the municipality's departments or officials. Chiles v. City of Smyrna, 146 Ga. App. 260, 246 S.E.2d 177 (1978); Hicks v. City of Atlanta, 154 Ga. App. 809, 270 S.E.2d 58 (1980); Tanner v. City of Gainesville, 162 Ga. App. 405, 290 S.E.2d 541 (1982).
Ante litem notice addressed to and received by mayor is sufficient compliance with O.C.G.A. § 36-33-5. Tanner v. City of Gainesville, 162 Ga. App. 405, 290 S.E.2d 541 (1982).
Letter addressed to "Mayor's Office, City of Gainesville, Gainesville, Ga. 30501" created factual issue as to notice required under O.C.G.A. § 36-33-5 and precluded a grant of summary judgment. Tanner v. City of Gainesville, 162 Ga. App. 405, 290 S.E.2d 541 (1982).
Notice to mayor and council.
- Notice of damages for injuries addressed to the Mayor and Council of Greensboro instead of to the city in the city's corporate name is sufficient, and the fact that the notice attempts a compromise does not render the notice insufficient. City of Greensboro v. Robinson, 19 Ga. App. 199, 91 S.E. 244 (1917).
Leaving notice with clerk of city commission.
- Filing of the required notice in writing in the office of, and leaving of the notice with, the officer who is the secretary or the clerk of the city commission, which is the governing authority of the city, and is the officer who is the custodian of the records of the city, is a presentation of the claim to the governing authority of the city as required. Davis v. City of Rome, 37 Ga. App. 762, 142 S.E. 171 (1928).
Notice required under this section must be given by person injured and having a claim because a city is only required to make adjustments with parties who make known the parties' claim and the parties' identity as claimants. Chiles v. City of Smyrna, 146 Ga. App. 260, 246 S.E.2d 177 (1978).
Notice may be given by one other than plaintiff.
- When there is only one cause of action, a notice given a municipality setting out the time and place of the occurrence, the extent and nature of the injury, to whom occasioned, and the negligence which allegedly caused the injury is a sufficient "substantial compliance" with this section, although the notice may have been given by one other than the plaintiff in the present suit. Taylor v. King, 104 Ga. App. 589, 122 S.E.2d 265 (1961).
Subrogation notice from insurer insufficient.
- Letter from the landowner's insurance carrier which fails to set out the time, place, extent of injury, or negligence which caused the injury and is nothing more than a subrogation notice letter is not sufficient notice under O.C.G.A. § 36-33-5. Jones v. City of Austell, 166 Ga. App. 808, 305 S.E.2d 653 (1983).
Notice of a personal injury claim by a tenant is not sufficient as ante litem notice of a property damage claim by the landlord under O.C.G.A. § 36-33-5. Jones v. City of Austell, 166 Ga. App. 808, 305 S.E.2d 653 (1983).
There is no requirement as to name and address of claimant in this section; failure to state either does not render the notice insufficient or noncompliant with this section. Bush v. City of Albany, 125 Ga. App. 558, 188 S.E.2d 245 (1972).
Even if claim requirement, unlike this section, demands address of claimant, that requirement is deemed satisfied if an address is given at which or through which the claimant may be found in order that the local government officials may make such investigation of the merits of the claim as may be desired. Bush v. City of Albany, 125 Ga. App. 558, 188 S.E.2d 245 (1972).
Waiver and Estoppel
Knowledge of claim alone cannot work waiver of notice.
- That the city governing authorities may have had knowledge of the fact that a party had a claim which the party expected to assert against the city, either from communications which do not meet the requisites of written notice under this section, or from a reference of the claim to an insurance carrier which undertook an investigation and settlement, cannot work a waiver of the notice, an estoppel to assert lack thereof, or toll the time for giving the notice. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969); Robinette v. Johnston, 637 F. Supp. 922 (M.D. Ga. 1986).
Notice not required when city, as party to contract, aware of claims.
- Ante litem notice to a municipality is required for claims "on account of injuries to person or property." Property rights in contracts being intangible in nature rather than tangible, the notice was not required where the city, as a party to the contract or negotiations leading up to the contract in question, was well aware of the conflicting claims, if any, arising out of the contract. Holbrook v. City of Atlanta, 139 Ga. App. 510, 229 S.E.2d 21 (1976).
Notice not required for claims that were not for injury to person or property.
- No ante litem notice to the city under O.C.G.A. § 36-33-5 was required for city water customers' claims for unjust enrichment, money had and received, and breach of the city code because the claims were not claims for injuries to a person or property covered under § 36-33-5. City of Atlanta v. Benator, 310 Ga. App. 597, 714 S.E.2d 109 (2011), overruled on other grounds, FDIC v. Loudermilk, 2019 Ga. LEXIS 186 (Ga. 2019).
Individual acts of city official will not create estoppel or waiver of this section when it is not shown that such city official had the actual or delegated authority of the governing body to waive such municipal rights. Peek v. City of Albany, 101 Ga. App. 564, 114 S.E.2d 451 (1960).
Statutory requirements for ante litem notice to the governing authority of the city generally may not be waived by the city or by an individual, even if that individual is the official directly responsible for the injury or for claims adjustment. City of LaGrange v. USAA Ins. Co., 211 Ga. App. 19, 438 S.E.2d 137 (1993).
City's insurer.
- City did not waive the ante litem notice requirement because the appellant's claim was referred to the city's insurer. Clark v. City of Smyrna, 212 Ga. App. 598, 442 S.E.2d 461 (1994).
Notice sent to wrong party.
- City waived the city's claim that the subject ante litem notice did not comply with O.C.G.A. § 36-33-5 by sending the notice to a city claims investigator, rather than the city attorney or the mayor. City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 421 S.E.2d 113 (1992).
City not estopped from invoking notice requirement by city attorney's unauthorized declarations.
- Any unauthorized declarations on the part of the city attorney to the effect that no written ante litem notice would be required in view of the fact that the matter had already been brought to the city's attention would not estop the city from invoking the statutory notice requirement since there was no evidence that the city attorney had any authority to waive the statutory notice requirement on behalf of the city. Gillingwater v. City of Valdosta, 177 Ga. App. 241, 339 S.E.2d 287 (1985).
Governing officials of municipal corporation have no right to waive provisions of this section, and the municipality cannot be estopped by the representations of the municipality's governing officials to a claimant that the claim will be settled without litigation. City of Calhoun v. Holland, 222 Ga. 817, 152 S.E.2d 752 (1966); Allen v. City of Macon, 118 Ga. App. 88, 162 S.E.2d 783 (1968).
Municipality not liable when no notice and defect has not existed long enough to substitute for notice.
- When the defective condition of a sidewalk is due to a failure to repair or to negligent acts of third persons, a city is not liable unless the city has had actual notice of the defect, or unless the city appears from the facts in the case that the defect could have been ascertained by the exercise of ordinary care, as when the defect existed for such a length of the time that notice will be implied. City of Rome v. Stone, 46 Ga. App. 259, 167 S.E. 325 (1933).
Two appearances by plaintiff insufficient to waive notice.
- Although notice was in the possession of the governing body of the municipal corporation before whom the plaintiff twice appeared, that alone would be insufficient to waive written notice within the time limited. Holland v. Calhoun, 114 Ga. App. 51, 150 S.E.2d 155, rev'd on other grounds, 222 Ga. 817, 152 S.E.2d 752 (1966).
Reply to plaintiff's claim acts as estoppel to assert defects in notice.
- When neither the pleadings nor the evidence reveals the slightest suggestion of restrictions on counsel for the city, the presumption arises that the city attorney had authority to bind the client by the solemn acknowledgment to plaintiff after receipt of plaintiff's letter giving notice of plaintiff's injury that, after investigation, the conclusion had been reached that the city was not liable. This amounts to an acknowledgment that this section had been complied with and the ante litem notice was sufficient, clearing the way for the filing of the complaint and estopping the city to deny the validity of the notice. City of Atlanta v. Frank, 120 Ga. App. 273, 170 S.E.2d 265 (1969).
Evidence stricken when insufficient to show waiver or estoppel.
- When allegations that the matter of plaintiff's injury was referred to a liability insurance carrier for investigation and settlement are insufficient to show waiver or any basis for estoppel, the allegations are improper in the pleadings of a tort action because the allegations are irrelevant to the issue and the allegations are properly stricken on motion. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969).
Issue of lack of notice must be raised at trial.
- While the notice required before a suit against a city cannot be waived by the city authorities and is a condition precedent to recovery, a city which fails to raise the issue at trial cannot take advantage of the failure of a claimant to plead compliance with this section. Horton v. City of Macon, 144 Ga. App. 380, 241 S.E.2d 311 (1977).
Time of Notice and Action
Requirement of ante litem notice in this section is a statute of limitations. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969); City of Barnesville v. Powell, 124 Ga. App. 132, 183 S.E.2d 55 (1971); Barnum v. Martin, 135 Ga. App. 712, 219 S.E.2d 341 (1975).
Notice requirement subject to general laws tolling statute of limitations.
- Requirement that the notice be given within six months from the date of the injuries, or else that the action therefor be forever barred, is itself a statute of limitations and subject to the general law of this state with respect to the tolling of statutes of limitations. City of Atlanta v. Barrett, 102 Ga. App. 469, 116 S.E.2d 654 (1960); Bituminous Cas. Corp. v. R.D.C., Inc., 334 F. Supp. 1163 (N.D. Ga. 1971).
Former Code 1933, § 69-308 (see now O.C.G.A. § 36-33-5) did not purport to curtail a two-year period of limitations, in actions for personal injuries, as provided in former Code 1933, § 3-1004 (see now O.C.G.A. § 9-3-33). It required that, as claims relate to municipal corporations, ante litem claims prepared as fully set forth shall be presented to the governing authority for adjustment, and inhibits commencement of an action against municipalities until such claims shall have been presented. City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941).
Second proviso of this section is exception to general rule that statute of limitations runs and continues to run from time that a complete cause of action arose; that is, from the time that plaintiff could have sued. City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941).
Applicability of section providing for computation of time after commencement of action.
- Ga. L. 1966, p. 609, § 6 (see now O.C.G.A. § 9-11-6) provided for the computations of time applicable to proceedings after commencement of the action. It did not apply in determining the time within which an action may be instituted, or when it may be barred by a statute of limitations. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969).
Section contemplates statute of limitations for injuries to person.
- Term statute of limitations as used in former Code 1933, § 69-308 (see now O.C.G.A. § 36-33-5) so employed, though not expressly naming it, contemplated former Code 1933, § 3-1004 (see now O.C.G.A. § 9-3-33). City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941).
Claim still pending when not considered within 30 days.
- When a governing authority does not consider and act upon a claim within 30 days from the time the action was commenced, it must follow that the claim will still be pending before the governing authority. City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941).
Suspension of statute of limitations while claim pending.
- Proviso in this section respecting the suspension of the statute of limitations is to the effect that the running of the statute shall be suspended during the time that the demand for payment is pending before the authorities without action on the authorities' part. This necessarily means that so long as the claim for damages is pending before the governing authorities of the municipality, and the authorities have not acted upon the claim, the statute of limitations is suspended. City of Atlanta v. Truitt, 55 Ga. App. 365, 190 S.E. 369 (1937).
When a claim not having been acted on by the governing authority is still pending under the plain and unambiguous language of the second proviso of this section, the statute of limitations is suspended not merely for 30 days, no action on the claim having been taken, but after 30 days up to the institution of suit. City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941) (see O.C.G.A. § 36-33-5).
It was not intended by the legislature that a municipality by refusing or omitting to act upon a claim could thereby delay or prevent institution of suit, and have the statute of limitations operative against the other party during the same period. City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941).
Trial court erred by dismissing an arrestee's suit against a city alleging false arrest and other claims as being time-barred for not being filed within the two-year limitation period established in O.C.G.A. § 9-3-33 because the arrestee established that the arrestee had provided a timely ante litem notice, pursuant to O.C.G.A. § 36-33-5(b), to the city and had properly included evidence of the notice in the record as an exhibit to the appellate brief. Simon v. City of Atlanta, 287 Ga. App. 119, 650 S.E.2d 783 (2007).
Municipality's failure to answer claim no bar to action.
- When it appeared from the petition in which the plaintiff sought to recover for personal injuries alleged to have been received by plaintiff as a result of a city's negligence in the maintenance of one of the city's streets, that the cause of action accrued January 23, 1938, and a claim therefor was filed with the governing authority of the defendant municipal corporation on January 19, 1940 (within the period of limitations), and that the defendant had never acted upon the claim, the plaintiff's cause of action had not become barred by the statute of limitations upon the filing of the suit on February 24, 1940. City of Rome v. Rigdon, 64 Ga. App. 625, 13 S.E.2d 709, aff'd, 192 Ga. 742, 16 S.E.2d 902 (1941).
Even though there was no evidence that plaintiff provided written notice of plaintiff's claim as is required by O.C.G.A. § 36-33-5 before filing suit since the trial court found that genuine issues of material fact remained regarding the city's liability for continuing trespass summary judgment was proper only as to those trespasses or nuisances which occurred more than four years prior to the filing of the complaint. Maxwell v. City of Chamblee, 212 Ga. App. 135, 441 S.E.2d 257, modified on other grounds, 264 Ga. 635, 452 S.E.2d 488 (1994).
Filing of suit after expiration of 30-day claim period.
- While this statute only prevents suit being filed within the period of 30 days after the filing of the claim with the city authorities, the statute does not prevent the filing of the suit at any time after the expiration of the 30 days, irrespective of whether or not the city authorities have acted on the claim. City of Atlanta v. Truitt, 55 Ga. App. 365, 190 S.E. 369 (1937).
When period begins to run.
- Time within which the notice must be given in order to comply with the statute begins to run on the day the breach of the city's duty occurred. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969).
Suit may not be filed until 30 days from filing of claim.
- This section clearly prevents the filing of a suit against the municipality until after the expiration of 30 days from the filing of the claim in writing with the municipal authorities as required. Of course, this claim must be filed within the period of the statute of limitations, and before the plaintiffs' right of action is barred. City of Atlanta v. Truitt, 55 Ga. App. 365, 190 S.E. 369 (1937).
O.C.G.A. § 36-33-5 contemplates that suit shall not be brought until after the municipal authorities have acted upon the claim, or have failed to take action thereon within 30 days. Jones v. City of Austell, 166 Ga. App. 808, 305 S.E.2d 653 (1983).
Effect of only part of injury occurring within statutory period.
- While the ante litem notice required to be given by this section is a prerequisite to the maintenance of an action against a city, if it appears from the notice that a part of the injury from which the claim arises occurred within the six-month period immediately preceding the notice, a general demurrer (now motion to dismiss) will not lie for noncompliance with this statute. City of Gainesville v. Moss, 108 Ga. App. 713, 134 S.E.2d 547 (1963), overruled on other grounds, City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994).
Municipality may answer claim after period elapsed.
- Length of time in which to consider and act upon a claim against a municipal corporation under this section has reference to consideration and action by public officers as affecting the public interest. It is not declared that the governing authority may not consider and act upon the claim after 30 days have elapsed. It could be to the public interest to have longer than 30 days. The object is to facilitate adjustment without suit, and there is no express withdrawal of power to consider and act. Thus, the quoted part of the first proviso of this section is merely directory, and not a limitation of authority. City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941).
Effect of disability.
- When the person to whom the claim belongs under former Code 1933, § 69-308 (see now O.C.G.A. § 36-33-5) is a person under disability as set forth in O.C.G.A. §§ 9-3-90 and9-3-98, the limitation period does not begin to run until such time as the disability shall have been removed. City of Barnesville v. Powell, 124 Ga. App. 132, 183 S.E.2d 55 (1971); Barnum v. Martin, 135 Ga. App. 712, 219 S.E.2d 341 (1975); Lowe v. Pue, 150 Ga. App. 234, 257 S.E.2d 209 (1979); City of Fairburn v. Cook, 188 Ga. App. 58, 372 S.E.2d 245, cert. denied, 188 Ga. App. 911, 372 S.E.2d 245 (1988); Jacobs v. Littleton, 241 Ga. App. 403, 525 S.E.2d 433 (1999).
Plaintiff waiting past expiration of 30-day period protected.
- When a plaintiff, though having the right to sue immediately after the expiration of the 30-day period, nevertheless waits longer pending action on the demand by the municipal authorities, the plaintiff does so by permission of the law as well as under guaranty of the law that so long as the claim was pending without action the statute would not run against the plaintiff. It necessarily follows that this case is not to be governed by the general rule as to computing the limitation period from the time the cause of action accrues, but that it is governed by the exception found in the second proviso to this section, so far as it relates to the statute of limitations. City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941).
Effect of later discovery of additional injury.
- Later discovery by plaintiff that plaintiff was suffering from additional injury from plaintiff's previous fall does not toll or extend the time for giving the requisite ante litem notice. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969).
Effect of period ending on Sunday.
- If the statutory six-months period for the giving of the notice ends on a Sunday, it does not extend the time to the Monday following since the period is measured in months, not days. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969).
When the plaintiff failed to give notice to a municipality within six months of the claim's origin, the court did not err in dismissing the complaint. Perdue v. City Council, 137 Ga. App. 702, 225 S.E.2d 62 (1976); Anderson v. City of Glenwood, 893 F. Supp. 1086 (S.D. Ga. 1995).
Tolling of claims against municipal corporations.
- In a tort action brought by a passenger against a regional transportation authority, the reversal of the denial of the authority's motion for judgment on the pleadings was upheld because by its terms, O.C.G.A. § 36-33-5(d) permitted the tolling of the period of limitation only for claims against municipal corporations and it was not a municipal corporation. Foster v. Ga. Reg'l Transp. Auth., 297 Ga. 714, 777 S.E.2d 446 (2015).
Case of continuing nuisance.
- Notice to a city alleged to have been given within six months from the expiration of the four-year statute of limitations period during which the nuisance sued on continuously caused damage to the petitioner's property was given within the time prescribed by this section. Vickers v. City of Fitzgerald, 216 Ga. 476, 117 S.E.2d 316 (1960), overruled on other grounds, City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994).
Upon giving the six-month notice required by O.C.G.A. § 36-33-5, a property owner who incurs damage as a result of a continuing nuisance or trespass maintained by a municipality is entitled within the four-year period of limitations, to recover only those damages incurred during the six-months preceding the giving of such notice. The recovery of any damages incurred prior thereto would be barred, since no timely notice of claim therefor was given pursuant to this section; overruling Vickers v. City of Fitzgerald, 216 Ga. 476, 117 S.E.2d 316 (1960); City of Gainesville v. Moss, 108 Ga. App. 713(2), 134 S.E.2d 547 (1963). City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994).
When a property owner failed to give any written notice to a city prior to filing a complaint for continuing trespass, summary judgment in favor of the city was proper as to the owner's claim for damages resulting from any continuing trespass "event" which occurred more than six months prior to the filing of the complaint. Any claim for damages resulting from a continuing trespass "event" which occurred within six months of the filing of the complaint was subject to a plea in abatement, rather than a motion seeking substantive adjudication. City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994).
Trial court properly granted summary judgment to the city on the claimant's tort claims arising from the back up of a sewer that flooded the claimant's home as no genuine dispute existed that the claimant did not file a written ante litem notice with the city within six months of the happening of the event that gave rise to the claim, the first flooding. The claimant was required to file written notice within that time even though the claimant alleged the flooding was a continuing nuisance as the city was entitled to notice arising from the first flooding so the city could attempt to fix the problem and the claimant's failure to timely give the city written notice meant the city could not be held liable. Cundy v. City of Smyrna, 264 Ga. App. 535, 591 S.E.2d 447 (2003).
Trial court properly determined that the property owners' claims of property damage, based on a continuing nuisance due to sewage backup, that occurred more than six months prior to the filing of their ante litem notice pursuant to O.C.G.A. § 36-33-5(b) were barred as untimely; although a prior letter could have constituted an ante litem notice, the four-year limitations period under O.C.G.A. § 9-3-30 had run prior to the institution of the lawsuit such that any claims in the six months prior to that letter were also barred. Davis v. City of Forsyth, 275 Ga. App. 747, 621 S.E.2d 495 (2005).
Disability of infancy is only removed when party affected reaches that party's lawful majority. Barnum v. Martin, 135 Ga. App. 712, 219 S.E.2d 341 (1975).
Statute will not run against minor represented in litigation by next friend or guardian ad litem. Barnum v. Martin, 135 Ga. App. 712, 219 S.E.2d 341 (1975).
Appointment of a guardian does not operate to start the statute of limitations running against the minor or the guardian in cases when the title to the cause of action is in the minor. Barnum v. Martin, 135 Ga. App. 712, 219 S.E.2d 341 (1975).
Notice to city employees not required.
- O.C.G.A. § 36-33-5 requires notice only if the claim is against the municipality; the statute does not require ante litem notice to individual employees of a municipality. Jacobs v. Littleton, 241 Ga. App. 403, 525 S.E.2d 433 (1999).
Procedure
Necessity of alleging timely notice.
- An action for damages for personal injuries against a municipality which fails to allege that the plaintiff's claim has been presented in writing to the municipality within six months of the occurrence of the injury is subject to general demurrer (now motion to dismiss). Jones v. City Council, 100 Ga. App. 268, 110 S.E.2d 691 (1959).
That part of the holding in Dover v. City of Jackson, 246 Ga. App. 524 (2000), requiring an ante litem notice for a statutory claim for attorney fees and costs of litigation is overruled because it is contrary to the specific statutory language, which limits its applicability to claims brought "on account of injuries to person or property"; the holding also ignores the courts' duty to strictly construe the statute because it is in derogation of common law. Greater Atlanta Home Builders Ass'n, Inc. v. City of McDonough, 322 Ga. App. 627, 745 S.E.2d 830 (2013).
Substantial compliance must be alleged.
- In a claim for money damages against a municipal corporation on account of injuries to person or property, the petition must affirmatively allege a compliance with the provisions of this section and unless it does so, it should be dismissed on demurrer (now motion to dismiss). Saunders v. City of Fitzgerald, 113 Ga. 619, 38 S.E. 978 (1901); Hooper v. City of Atlanta, 26 Ga. App. 221, 105 S.E. 723 (1921); Grooms v. City of Hawkinsville, 31 Ga. App. 424, 120 S.E. 807 (1923); Newton v. City of Moultrie, 37 Ga. App. 631, 141 S.E. 322 (1928).
While giving of notice is a condition precedent to bringing an action, the giving of such notice is at once part and parcel of the enforcement of the right and it is an inseparable part of the bringing of the action. It is a part of the procedure for enforcing the right and as such it must affirmatively appear in the petition, either in the body thereof or by an exhibit thereto that such notice has been given. A petition which does not thus affirmatively show performance of the condition precedent is subject to general demurrer (now motion to dismiss). City of Atlanta v. Barrett, 102 Ga. App. 469, 116 S.E.2d 654 (1960), overruled on other grounds by Department of Public Safety v. Ragsdale, 839 S.E.2d 541, 2020 Ga. LEXIS 137 (Ga. 2020); Bituminous Cas. Corp. v. R.D.C., Inc., 334 F. Supp. 1163 (N.D. Ga. 1971).
Compliance with this section must be alleged in the complaint or else the complaint cannot state a cause of action. City of Atlanta v. Frank, 120 Ga. App. 273, 170 S.E.2d 265 (1969).
Allegations of compliance are not subject to demurrer (now motion to dismiss) merely because no copy of a claim was attached to the petition. Habersham County v. Cornwall, 38 Ga. App. 419, 144 S.E. 55 (1928).
When no allegation in complaint that notice given to city, claim not maintainable.
- O.C.G.A. § 36-33-5 requires written notice of the charges to the municipal corporation. When a complaint does not make any allegation that written notice was given to a city, no claim based on state law can be maintained against the city. Dague v. Riverdale Athletic Ass'n, 99 F.R.D. 325 (N.D. Ga. 1983).
Effect of allegation of notice in renewal petition.
- An allegation in the renewal petition to the effect that prior to the institution of the former suit, which was against a municipal corporation, the plaintiff had served upon the defendant a written notice of claim, as provided by this section, in which the plaintiff claimed damages arising out of the same cause of action as that sued on in the renewal petition, is not an allegation as to the cause of action sued on in the former suit. Barber v. City of Rome, 39 Ga. App. 225, 146 S.E. 856 (1929).
Giving of notice is part of trial process. City of Atlanta v. Frank, 120 Ga. App. 273, 170 S.E.2d 265 (1969).
Stipulation as to receiving notice.
- In a nuisance suit by homeowners against the City of Atlanta with regard to recurrent flooding in a neighborhood, the trial court erred in granting the city's motion for judgment notwithstanding the verdict as to one homeowner based on the homeowners' alleged failure to put forth any evidence that those homeowners served the city with the statutorily required ante litem notice; because the record demonstrated that the city stipulated that one of the homeowners had provided ante litem notice, the trial court erred in granting a judgment notwithstanding the verdict as to that homeowner, but since there was no citation in the record as to the other homeowner providing ante litem notice to the city, granting of the city's motion for judgment notwithstanding the verdict as to that homeowner was proper. City of Atlanta v. Broadnax, 285 Ga. App. 430, 646 S.E.2d 279 (2007), cert. denied, No. S07C1445, 2007 Ga. LEXIS 615, 648 (Ga. 2007), overruled on other grounds, Royal Capital Dev. LLC v. Md. Cas. Co., 291 Ga. 262, 728 S.E.2d 234 (2012).
Failure to rebut allegation of notice in amended complaint.
- When plaintiff, in plaintiff's amended complaint, alleged plaintiff gave the ante litem notice required by O.C.G.A. § 36-33-5, but the defendants failed to rebut the allegation in the amended complaint, the dismissal of the complaint under O.C.G.A. § 36-33-5 was improper. Harper v. Savannah Police Dep't, 179 Ga. App. 449, 346 S.E.2d 891 (1986).
Municipality required to consider claim.
- After plaintiffs furnish a sufficient ante litem notice, the municipality is required to consider and act on the claim by settlement or denial. City of Claxton v. Claxton Poultry Co., 134 Ga. App. 679, 215 S.E.2d 718 (1975).
Evasive answer treated as admission.
- Petition alleged that notice of claim for damages was given to the defendant municipal corporation. The defendant being chargeable with knowledge of the service upon it of this notice, and its answer to this allegation of the petition being evasive, the answer will be treated as an admission that the notice was given as alleged. Mayor of Madison v. Bearden, 22 Ga. App. 376, 96 S.E. 572, cert. denied, 22 Ga. App. 803 (1918).
Availability of discovery.
- Further discovery procedures are available to the city on the same basis offered by law to parties in all litigation proceedings. City of Claxton v. Claxton Poultry Co., 134 Ga. App. 679, 215 S.E.2d 718 (1975).
Municipality may not demand additional information or hearing.
- There is no requirement contemplated by the statute that after receipt of a notice of claim the municipality may require additional information, or that the city may demand that the complainant appear before the city's council for an informational hearing. City of Claxton v. Claxton Poultry Co., 134 Ga. App. 679, 215 S.E.2d 718 (1975).
Compliance with section must be proven.
- When, in an action for personal injuries against a city, compliance with this section is alleged, and such allegation is denied by the city, it is a necessary part of the plaintiff's case that plaintiff prove compliance with the statute, and on failure to show substantial compliance therewith it is not error to grant a nonsuit. City of Tallapoosa v. Brock, 138 Ga. 622, 75 S.E. 644 (1912); Bostwick v. City of Griffin, 141 Ga. 120, 80 S.E. 657 (1913).
When the trial record did not clearly establish that six-months' ante litem notice was not given, it was error to dismiss the claim against the municipal corporation. Brackett v. City of Atlanta, 149 Ga. App. 147, 253 S.E.2d 786 (1979).
Plaintiff bound by acts alleged in notice.
- Petition on which the plaintiff seeks recovery against the city must be based on the claimed negligent transaction as set out in the notice given to the city, and plaintiff cannot proceed against the city upon acts of negligence different from those set out in that notice. City of Atlanta v. Harris, 52 Ga. App. 56, 182 S.E. 202 (1935).
Plaintiff's action for malicious prosecution was premature, as was plaintiff's ante litem notice to the defendant municipality, when plaintiff's indictment for theft of services had been dead-docketed, since termination of that prosecution in plaintiff's favor was a prerequisite to bringing of a malicious prosecution suit and dead-docketing of a case does not terminate a malicious prosecution case. Webster v. City of E. Point, 164 Ga. App. 605, 294 S.E.2d 588 (1982).
Premature suit grounds for abatement, not summary judgment.
- Compliance with O.C.G.A. § 36-33-5 is a condition precedent to filing suit against the city, but the filing of suit against the city prior to the expiration of 30 days from the time of filing the claim is a matter that is properly raised as a plea in abatement and not a proper subject for summary judgment. Jones v. City of Austell, 166 Ga. App. 808, 305 S.E.2d 653 (1983).
Dismissal, rather than summary judgment, is appropriate in cases when the merits cannot be reached because of the plaintiff's failure to satisfy the notice requirements of O.C.G.A. § 36-33-5. Robinette v. Johnston, 637 F. Supp. 922 (M.D. Ga. 1986).
Dismissal of premature suit is without prejudice.
- In cases in which the merits could not have been reached because of the failure of the plaintiff to satisfy a precondition, such as when a suit is filed prior to the expiration of 30 days from the time of filing the claim, the appropriate action is dismissal of the case on motion. Such a dismissal should be without prejudice, and, having no res judicata effect, would not bar the filing of another suit. Jones v. City of Austell, 166 Ga. App. 808, 305 S.E.2d 653 (1983).
Complaint properly amended after notice of claim given.
- Claim by an association of taxicab owners that a city violated procedural due process by failing to provide the association's members with proper notice of violations of regulations was improperly dismissed for failure to comply with the ante-litem notice requirements of O.C.G.A. § 36-33-5 when the association failed to give notice of the claim before filing the association's original complaint, withdrew the claim from the complaint, gave notice under O.C.G.A. § 36-33-5, and then amended the original complaint to add the claim; the notification could not have been accomplished simply by amending the complaint after the action was filed, and to the extent that City of Atlanta v. Fuller, 164 S.E.2d 364 (1968) held otherwise, that case was overruled, but the procedure followed by the association satisfied the procedural requirement of giving the city an opportunity to investigate the claim so as to determine whether to settle the claim without resorting to litigation, and the association was not procedurally barred from pursuing the association's claim for the alleged due process violations that occurred in the six months before the ante-litem notice was given. Atlanta Taxicab Co. Owners Ass'n v. City of Atlanta, 281 Ga. 342, 638 S.E.2d 307 (2006).
Effect of nonsuit on proof of notice.
- In an action against a municipality for personal injuries, duly renewed after the grant of a nonsuit in a substantially similar former action in the superior court, the former judgment cannot be taken as having determined that the petition was insufficient, and that the plaintiff had no right to recover, because plaintiff's notice of injury to the municipality was legally insufficient under this section, especially since it is not made to appear that the sufficiency of the notice was in anywise determined or questioned in the former action by demurrer (now motion to dismiss) or otherwise, or that the nonsuit was granted for any reason other than that the evidence as to negligence was insufficient to authorize a recovery. Jones v. Mayor of Savannah, 52 Ga. App. 537, 184 S.E. 353 (1936).
RESEARCH REFERENCES
Am. Jur. 2d.
- 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 598 et seq.
C.J.S.- 64A C.J.S., Municipal Corporations, §§ 2567, 2568.
ALR.
- Applicability of statute or ordinance requiring notice of claim for damages from injuries in street as affected by the conditions which caused the injury, 10 A.L.R. 249.
Necessity of presenting claim against municipality for damaging property, 52 A.L.R. 639.
Right of person not named as claimant in notice of claim to municipality to sustain action thereon, 63 A.L.R. 1080.
Power of municipality to consent to judgment against itself, 67 A.L.R. 1503.
Places within operation of statute or ordinance requiring notice of claim as a condition of municipal liability for injuries, 72 A.L.R. 840.
Waiver of failure to give notice of claim or injury as condition of municipal liability for injury from defect in street or other public place, 82 A.L.R. 749; 159 A.L.R. 329; 65 A.L.R.2d 1278.
What amounts to claim for personal injury within statute or ordinance requiring notice as condition of municipal liability, 97 A.L.R. 118.
Requirement of notice of injury or claim as condition of action against municipality as applicable to injury or death of municipal officer or employee, 98 A.L.R. 522.
Statute of limitations as applicable to actions by or against school districts, 98 A.L.R. 1221.
Construction, application, and effect of statutory provisions avoiding effect of inaccuracy or omission in notice of injury required as condition of municipal liability, 103 A.L.R. 298.
Power of city, town, or county or its officials to compromise claim, 105 A.L.R. 170; 15 A.L.R.2d 1359.
Continuing character of municipality's negligence and injury or damage therefrom as affecting requirement of notice to municipality, 116 A.L.R. 975.
When statute of limitations commences to run as to action against municipality for damages to riparian premises by pollution of stream by discharge of sewage, 122 A.L.R. 1509.
Necessity and sufficiency of statement as to amount of damages or compensation claimed, in notice or claim required as condition of municipal liability for injury to person or property, 136 A.L.R. 1368.
Waiver of, or estoppel to assert, defects in notice of claim against county or municipality, 148 A.L.R. 637.
Necessity and sufficiency of statement in notice of tort claim against county or municipality regarding identity of officers or employees chargeable with fault, 150 A.L.R. 1054.
Waiver of, or estoppel to assert, failure to give notice of claim of injury as condition of liability of municipality, county, or other governmental agency for injury from defect in street, road, or other public place, 153 A.L.R. 329; 65 A.L.R.2d 1278.
Use of abbreviations of name of municipal body or private corporation in designating party to judicial proceedings, 167 A.L.R. 1217.
Statute respecting presentation of liability claim against municipality as affecting its powers in that field, 170 A.L.R. 237.
Power of city, town, or county or its officials to compromise claim, 15 A.L.R.2d 1359.
Persons upon whom notice of injury or claim against municipal corporation may or must be served, 23 A.L.R.2d 969.
Infancy or incapacity as affecting notice required as condition of holding municipality or other political subdivision liable for personal injury, 34 A.L.R.2d 725.
Claimant's deposition or statement taken by municipality or other political subdivision as statutory notice of claim for injury or as waiver thereof, 41 A.L.R.2d 883.
Effect of death as a result of injury on requirement of notice of claim against a city or other subordinate governmental unit, 51 A.L.R.2d 1128.
Variance between notice of claim against municipality and proof as regards cause, manner, or locality of the accident, 52 A.L.R.2d 966.
Sufficiency of notice of claim against municipality with respect to nature of defect and cause of accident, 62 A.L.R.2d 397.
Sufficiency of notice of claim against municipality as regards description of personal injury or property damage, 63 A.L.R.2d 863.
Sufficiency of notice of claim against municipality as regards identity, name, and residence of claimant, 63 A.L.R.2d 911.
Waiver of, or estoppel to assert, failure to give required notice of claim of injury to municipality, county, or other governmental agency or body, 65 A.L.R.2d 1278.
Waiver of, or estoppel to rely upon, contractual limitation of time for bringing action against municipality or other political subdivision, 81 A.L.R.2d 1039.
Necessity and sufficiency of plaintiff's pleading of having given requisite notice or presented claim to municipality or other public body, 83 A.L.R.2d 1178.
Claim for contribution or indemnification from another tort-feasor as within provisions of statute or ordinance requiring notice of claim against municipality, 93 A.L.R.2d 1385.
Power of municipal corporation to submit to arbitration, 20 A.L.R.3d 569.
Amount of damages stated in notice of claim against municipality or county as limiting amount of recovery, 24 A.L.R.3d 965.
Incapacity caused by accident in suit as affecting notice of claim required as condition of holding local governmental unit liable for personal injury, 44 A.L.R.3d 1108.
Modern status of the law as to validity of statutes or ordinances requiring notice of tort claim against local governmental entity, 59 A.L.R.3d 93.
Plaintiff's right to bring tort action against municipality prior to expiration of statutory waiting period, 73 A.L.R.3d 1019.
Actual notice or knowledge by governmental body or officer of injury or incident resulting in injury as constituting required claim or notice of claim for injury - modern status, 7 A.L.R.4th 1063.
Local government tort liability: minority as affecting notice of claim requirement, 58 A.L.R.4th 402.
Insufficiency of notice of claim against municipality as regards statement of place where accident occurred, 69 A.L.R.4th 484.
Complaint as satisfying requirement of notice of claim upon states, municipalities, and other political subdivisions, 45 A.L.R.5th 109.
Persons or entities upon whom notice of injury or claim against state or state agencies may or must be served, 45 A.L.R.5th 173.
Sufficiency of notice of claim against local political entity as regards time when accident occurred, 57 A.L.R.5th 689.
Waiver of, or estoppel to assert, failure to give or defects in notice of claim against state or local political subdivision - modern status, 64 A.L.R.5th 519.