500 years ago, kings ruled realms across the world. Many of them claimed to have been anointed by God. From this came the rule of law that the king could do no wrong. No matter what the king may do, a subject had no right of legal recourse. This legal doctrine of sovereign immunity became the law in England, was passed down to our colonial ancestors, and became the law in the various states after we gained our freedom from England.
Eventually, the people demanded that the state be accountable for its conduct and state legislatures began to dismantle the protection of sovereign immunity. They did not go happily or willingly. After all, whenever someone successfully sued the state, the state or its subdivision was going to have to come up with the money to pay the judgment. There goes the budget. Some legislator’s pet project may have to be put on the shelf. To remedy this intolerable situation, some state legislatures did what they could make it difficult for people harmed by the state to successfully sue. Arizona joined them.
Arizona’s main tool for making things difficult for people injured by the conduct of the state, or other public entity, public school, or an employee of the one of them (“the state”) is its Notice of Claim statute, A.R.S. Section 12-821.01. The idea of the statute is pretty straightforward and not controversial: The state should be put on notice of a claim before suit is filed and given an opportunity to settle it. Who could object to such a noble goal? It promotes settlement and, if the case can be settled early, it saves money for everyone. If it were only that simple, there would be no problem and no trap. However, only very rarely does the Notice of Claim result in a settlement. Far more often, the statute is used to defeat a claim. The requirements of the Notice of Claim statute are many and even the slightest deviation is enough to get a claimant tossed out of court.
One of the most important requirements of the statute is that the notice must be presented within 180 days of the accrual of the action. That is a very short period of time. It is only 1/4 of the amount of time an injured person has to bring a claim against a non-state actor. Many people injured by the state have no idea that they must act that quickly.
Under the terms of the statute, a claim accrues when a person realizes he has been damaged, and knows or should know the cause or source of the damage. A person may realize he has been damaged, but it may not be immediately apparent that the damage was caused by the negligence of the state. Even if a person files a Notice of Claim immediately after they realize the state is responsible for their injury, there may be an argument about whether he should have realized the state’s role sooner and filed the Notice of Claim sooner.
The statute requires the Notice to contain “sufficient facts” to permit the state to understand the basis on which liability is claimed. Like beauty, “sufficient facts” is often in the eye of the beholder. The state frequently complains that the Notice did not contain “sufficient facts” and that it could not understand the basis for the claim. If the court agrees, the claimant does not get an opportunity to add more facts, the claimant is out of court and out of luck.
The Notice must also state a specific amount for which the claim can be settled and “the facts supporting that amount.” There are lots of ways to make a mistake here, especially if there are multiple claimants or multiple categories of damages. Do you state a specific number for each claimant or one number for which the total claim can be settled? Even if an appropriate specific amount is claimed, how many facts are enough facts to support the amount claimed? Not enough facts to satisfy the state and you are out of court.
Finally, even the most perfect Notice of Claim can fail, if it is not filed “with the person or persons authorized to accept service for the public entity, public school or public employee as set forth in the Arizona rules of civil procedure.” There may need to be multiple copies of the Notice filed with different people to meet the requirements of the statute. Getting it to the right office is not sufficient, if you do not also get it to the proper person in the office.
The problems presented by the Notice of Claim statute are complicated by the fact that the state is increasingly involved in activities that most people may not think of as state activities. For instance, how many people would think that the doctor treating them at a private hospital is a state employee for whom a Notice of Claim must be filed? At certain private hospitals in Arizona, resident physicians, who are receiving their residency training through a program at the University of Arizona, provide patient care and are considered to be state employees. These residents don’t announce themselves as students or as state employees. That is up to the patient to figure out, if the resident malpractices on the patient.
All of this should be a reminder to people who have been injured to seek legal counsel promptly since there are legal deadlines that may pass you by before you know it.
