Research on Case Viability

Author: LegalEase Solutions

RESEARCH FINDINGS

Persons who have claims against a public entity or a public employee shall file claims with the person or persons authorized to accept service for the public entity or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues. The claim shall contain facts sufficient to permit the public entity or public employee to understand the basis on which liability is claimed. The claim shall also contain a specific amount for which the claim can be settled and the facts supporting that amount. Any claim that is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon. Ariz. Rev. Stat. Ann. § 12-821.01 (A)

For the purposes of this section, a cause of action accrues when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage. Ariz. Rev. Stat. Ann. § 12-821.01(B)

Arizona Supreme Court held that tortfeasors are to answer for their wrongdoing and the State, just like any other actor is amenable to suit for his or her tortious acts. Stone v. Ariz. Highway Comm’n, 381 P.2d 107, 112 (Ariz. 1963).  “[t]he legislature enacted the claim statute as part of a movement to subject government to reasonable liability” and to “protect[] the government from excess or unwarranted liability[.]”Yollin v. City of Glendale, 191 P.3d 1040, 1044-45 (Ariz. Ct. App. 2008).

A notice of claim must be filed within 180 days after a cause of action accrues or the claim is barred. A.R.S. § 12-821.01(A). Further, an action against any public entity or public employee must be filed within one year after the cause of action accrues. A.R.S. § 12-821 (2003). Haizlip v. City of Scottsdale, 1 CA-CV 09-0163, 2010 WL 364168 (Ariz. Ct. App. Feb. 2, 2010).

If a notice of claim is not properly filed within the statutory time limit, a plaintiff’s claim is barred by statute. Salerno v. Espinoza, 210 Ariz. 586, 589, ¶ 11, 115 P.3d 626, 629 (App.2005). Actual notice and substantial compliance do not excuse failure to comply with the statutory requirements of A.R.S. § 12–821.01(A). Falcon ex rel. Sandoval v. Maricopa Cnty., 213 Ariz. 525, 527, 144 P.3d 1254, 1256 (2006)

A cause of action accrues “when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage.” A.R.S. § 12–821.01(B); Dube v. Likins, 216 Ariz. 406, 411, ¶ 7, 167 P.3d 93, 98 (App.2007) (noting definition of when a cause of action accrues under § 12–821.01(B) applies to limitation period in § 12–821).Kelly v. Lake Havasu City Police Dep’t, 1 CA-CV 12-0336, 2013 WL 267769 (Ariz. Ct. App. Jan. 24, 2013)

When determining accrual of a cause of action against a public entity, for purposes of 180-day time limit for filing statutory notice of claim, the relevant inquiry is when did a plaintiff’s knowledge, understanding, and acceptance in the aggregate provide sufficient facts to constitute a cause of action. A.R.S. § 12–821.01. Little v. State, 225 Ariz. 466, 240 P.3d 861 (Ct. App. 2010).  A plaintiff need not know all the facts underlying a cause of action to trigger accrual, for purposes of determining commencement of running of 180-day time limit for filing statutory notice of claim against a public entity, but must at least possess a minimum requisite of knowledge sufficient to identify that a wrong occurred and caused injury. Little v. State, 225 Ariz. 466, 240 P.3d 861 (Ct. App. 2010)

The notice of claim statute is subject to estoppel and equitable tolling. A.R.S. § 12–821.01(A). Equitable tolling applies only in “extraordinary circumstances” and not to “ ‘a garden variety claim of excusable neglect.’ ”McCloud, 217 Ariz. 82, ¶ 16, 170 P.3d at 697, quoting Irwin v. Dep’t of Veterans Affairs,498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Little v. State, 225 Ariz. 466, 240 P.3d 861 (Ct. App. 2010).

The statute applies to a claim against a public employee regardless of whether the employee in question is sued in his individual or official capacity. The relevant inquiry for purposes of the statute is not whether the employee is sued on an individual or official basis, but whether the underlying cause of action arises out of the scope of the employee’s employment.

The statute clarifies that “a cause of action accrues when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition which caused or contributed to the damage.” An exception to the one hundred eighty day window is carved out for those claims that “must be submitted to a binding or nonbinding dispute resolution process or an administrative claims process or review process pursuant to a statute, ordinance, resolution, administrative or governmental rule or

regulation, or contractual term . . . .” 146   d. § 12-821.01(B).

Statutory definition of accrual for filing a notice of claim against public entity or public employee, stating that a cause of action accrues when the damaged party realizes he has been damaged and knows or reasonably should know the cause, act, event, instrumentality or condition which caused or contributed to the damage, also governs determination of when an action accrues for purposes of the one-year statute of limitations for filing of the complaint against public entity or public employee. A.R.S. §§ 12–821, 12–821.01(B). Dube v. Likins, 216 Ariz. 406, 167 P.3d 93 (Ct. App. 2007)

The one-year limitations statute for suits against a public entity is not tolled pending completion of the statutorily required notice of claim procedure, nor does the claim against the entity “accrue” for limitations purposes upon denial of the notice of claim; the tolling provisions of a subsection of the statute apply to alternative dispute resolutions or administrative claims and review processes other than the notice of claim procedure set forth in an earlier subsection. Stulce v. Salt River Project Agr. Imp. & Power Dist., 197 Ariz. 87, 3 P.3d 1007 (Ct. App. 1999)

Here, in this case Aldridge may argue that the time for filing notice of claim is tolled by discovery issues.  The 180-day period for filing runs from the time when he came to know about the case and realized he has been damaged pursuant to Ariz. Rev. Stat. Ann. § 12-821.01(B).  The statute itself has a discovery rule written within it so a notice of claim may be filed.  Further, the proposed notice of claim should contain facts sufficient to permit the public entity or public employee to understand the basis on which liability is claimed and it should also contain a specific amount for which the claim can be settled and the facts supporting that amount.

Potential Claims

Violation of due process rights

Where indigent mother requested appointment of counsel at dependency proceeding and evidence was taken without the appointment of counsel who was subsequently appointed and participated in further proceedings, mother was denied due process and adjudication of dependency must be set aside. Matter of Juvenile Action No. J-64016, 127 Ariz. 296, 619 P.2d 1073 (Ct. App. 1980)

A.R.S. Sec. 8-225(B) provides that, “If a child, parent or guardian is found to be indigent, the juvenile court shall appoint an attorney to represent such person or persons unless counsel for the child is waived by both the child and the parent or guardian.”  Even though this statute is with regard to parent or guardian who is found to be indigent, “this statute is legislative recognition that due process requires appointment of counsel in a dependency proceeding where the parent faces losing custody of a child”. Matter of Juvenile Action No. J-64016, 127 Ariz. 296, 298, 619 P.2d 1073, 1075 (Ct. App. 1980).