RODGER F. TOOP, APPELLANT,

v.

METROPOLITAN DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, ET AL., APPELLEES

Fla. 3d DCA | 1963-03-19

No. 62-323

Before CARROLL, HORTON and HENDRY, JJ.

151 So. 2d 69 Florida District Court of Appeal, Third District (1963) Positive Treatment

Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Toop appealed a summary judgment dismissing his negligence claim against Miami-Dade County for failure to provide notice of the tort claim within 60 days as required by county ordinance. The court reversed, holding that incapacity can excuse the notice requirement even without continuous unconsciousness, and that conflicting evidence on incapacity should be resolved by a jury rather than the trial judge.

Holding

The court held that incapacity can excuse the notice requirement without requiring continuous unconsciousness throughout the notice period. Conflicting evidence regarding whether a plaintiff was incapacitated must be submitted to a jury for determination rather than resolved by summary judgment at the trial court level.

Key Quotes

“There was a triable issue to be submitted for jury determination as to whether the plaintiff was incapacitated so as to excuse giving notice of tort claim to the county within 60 days as required by ordinance, and, if so, whether the notice was given within a reasonable time after such incapacity ended.”
Establishes the core holding that incapacity is a triable factual issue for the jury

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Facts & Procedural History

Toop was injured on November 14, 1960, and was hospitalized from October 20, 1960 to January 20, 1961, undergoing two surgical procedures and sufferin…

The full statement of facts, procedural history, and disposition for this case are member content.

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Opinion of the Court

CARROLL, Judge.

The summary judgment for defendants is reversed. There was a triable issue to be submitted for jury determination as to whether the plaintiff was incapacitated so as to excuse giving notice of tort claim to the county within 60 days as required by ordinance, and, if so, whether the notice was given within a reasonable time after such incapacity ended.1 The trial judge appears to have determined plaintiff did not come within the exception approved in the Alexander case2 because he was not unconscious throughout the notice period. An affidavit of a doctor stated that the plaintiff was incapacitated by serious illness and pain during the period involved.3 There was other evidence indicating the contrary. However, the conflicting evidence on that issue should not have been resolved by the court. See Johnson v. Studstill, Fla.1954, 71 So.2d 251; Connolly v. Sebeco, Inc., Fla.1956, 89 So.2d 482; Alexander v. Gordon, Fla.App.1963, 147 So.2d 595.

In fairness to the trial judge, it should be noted that the later case of Alexander v. Gordon, supra, dealing with incapacity as an excuse for failure to give notice, had not been decided when he ruled. In Gordon, the exception was held applicable without continued unconsciousness. See also City of Colorado Springs v. Colburn, 102 Colo. 483, 81 P.2d 397; Forsyth v. City of Oswego, 191 N.Y. 441, 84 N.E. 392; Hillborg v. City of New York, 263 App.Div. 668, 34 N.Y.S.2d 153; Carter v. City of Greensboro, 249 N.C. 328, 106 S.E.2d 564, Burkard v. City of Dell Rapids, 76 S.D. 56, 72 N.W.2d 308.

The judgment appealed from is reversed and the cause remanded for triaL

. The doctor’s affidavit stated:

“Rodger Toop was a patient under my care at the Jackson Memorial Hospital from October 20, 1960, to January 20, 1961. During that period of time, Rodger Toop underwent two surgical procedures and also suffered a permanent injury to his sciatic nerve as the result of an improperly administered injection in the right buttocks area.

“Rodger Toop’s physical and mental condition rendered him incapable of recognizing or acting upon any legal rights or duties he may have had during the period beginning October 24, 1960, and ending during the first week of January, 1961. This condition was created by complications arising from his surgical procedures, and by pain caused by the aforementioned injection, making it necessary for him to be given large dosages of sedatives and narcotics. His condition was critical during a good part of his hospital confinement.”

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Metro. Dade Cnty. v. Toop, 155 So. 2d 694 (Fla. 1963)

…Certiorari denied without opinion. 151 So. 2d 69.…
Rodger F. Toop v. Metro. Dade Cnty., 156 So. 2d 45 (Fla. 3d DCA 1963)

…PER CURIAM. Certiorari Denied. See also Fla.App., 151 So. 2d 69.…
Pac. Indem. Co. v. Broward Cnty., 465 F.2d 99 (5th Cir. 1972)

…ation did include the agreed fact that Pacific Indemnity had given the County the requisite statutory notice. . The Florida Courts do not seem to distinguish between counties and municipalities in this regard. Cf., Toop v. Metropolitan Dade County, 151 So. 2d 69 (Fla.App.1963). . However a contrary rule did prevail in earlier cases, e. g., Town of Mount Dora v. Green, 117 Fla. 385, 158 So. 131, 132 (1934). . In any action, the court may in its discretion direct the attorneys for the parties to appear befo…

Authorities Cited

Connolly v. Sebeco, Inc., 89 So. 2d 482 (Fla. 1956)
Johnson v. Studstill, 71 So. 2d 251 (Fla. 1954)
Alexander v. L. H. Gordon & the City of Pahokee, 147 So. 2d 595 (Fla. 2d DCA 1962)

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