Court enforces 120-day notice provision against disabled woman
The Court of Appeals recently held that a woman could not sue the City of Taylor for inadequate road maintenance, because she did not advise the City of her injuries and her potential road claim within 120 days of the accident that caused them. The Court held that the statutory provision allowing an injury victim additional time to report a road defect if he or she is "mentally or physically incapable of giving notice" did not apply to this woman, despite the fact that she was living in a nursing home or sleeping in a hospital bed in her living room during the first 120 days after she was hurt, as a result of spinal cord injuries and a femur fracture, several surgeries, a disabling infection, and not surprisingly, depression.
In essence, the panel of three judges held that the "mental or physical" disability must be one that renders the victim "incompetent". Even though the trial judge concluded that her physical disabilities rendered her unable to comply, the Appeals Court held that the statutory requirement that this issue be decided by the trier-of-fact did not apply to her because there were no "disputed facts" and she was in its view "capable".
The Court further held that the notice provided to the City through the investigating police officer's report could not substitute for the injured woman's notice because she had to originate the notice; it could not come from anyone else.