The District of Columbia, like many governments, has a
statutory notice requirement that is a prerequisite for filing a tort claim
against the District, in exchange for the Government's waiver of sovereign
immunity. D.C. Code § 12-309 provides:
An action may not be maintained against the District of
Columbia for unliquidated damages to person or property unless, within six
months after the injury or damage was sustained, the claimant, his agent, or
attorney has given notice in writing to the Mayor of the District of
Columbia of the approximate time, place, cause, and circumstances of the
injury or damage.
On May 5, 2005, the Plaintiff was arrested by Metro
Transit Police Officers. At the time of his arrest, certain personal
property was confiscated from him including cash, two cellular phones,
jewelry and several money orders. He was processed at central booking and
released. Upon his release he returned to the Transit Police Department to
obtain his personal property. He was informed, however, that his items would
be retained as potential evidence in the criminal action.
In late 2007, the criminal proceedings were concluded,
and Mr. Barnhardt sought to have his personal property returned. While he
recovered most of his belongings, he was informed that his money orders and
jewelry had been transferred to the Metropolitan Police Department and were
destroyed in May 2006. The Plaintiff issued written notice to the District
of Columbia's Mayor that he intended to file suit alleging negligence and
conversion.
The Plaintiff filed his lawsuit in the Federal District
Court for the District of Columbia. That Court determined that Mr. Barnhardt
sustained his injury in May 2006 when the property was actually destroyed.
Therefore, he had not given notice within six (6) months time of the injury.
On appeal, the Federal Appellate Court certified the question.
The Court of Appeals first noted that compliance with
the statutory notice requirement is a mandatory prerequisite to filing an
action against the District of Columbia. District of
Columbia v. Dunmore, 662 A.2d 1356, 1359 (D.C. 1995) (citing
Hardy v. District of Columbia, 616 A.2d 338,
340 (D.C. 1992)). Moreover, the relevant case law requires that the
statutory section be strictly construed against claimants. Id. The Court
then cited Dunmore for the proposition that
the discovery rule (used in statute of limitations cases) does not apply in
the same way to considerations under D.C. Code § 12-309.
Dunmore, 662 A.2d at 1359.
The Court placed particular emphasis on the basis for
Congress enacting the notice statute:
(1) to protect the District of Columbia against
unreasonable claims and (2) to give reasonable notice to the District of
Columbia so that the facts may be ascertained and, if possible, deserving
claims adjusted and meritless claims resisted. Id.
The Court determined, however, that a plaintiff being
completely unaware of the injury is a distinct situation. While not
retreating from its prior decisions holding that the discovery rule as
traditionally applied is not applicable to § 12-309, the Court held that
D.C. Code § 12-309 will not bar a claim if the claimant's failure to give
timely notice was because the claimant was justifiably, and completely,
unaware that he or she had sustained any injury at all.
The Court determined, however, that a plaintiff being
completely unaware of the injury is a distinct situation. While not
retreating from its prior decisions holding that the discovery rule as
traditionally applied is not applicable to § 12-309, the Court held that
D.C. Code § 12-309 will not bar a claim if the claimant's failure to give
timely notice was because the claimant was justifiably, and completely,
unaware that he or she had sustained any injury at all.
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