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Wilson v. City of Tampa

Florida Court of Appeals, Second District

February 1, 2017

FANNYE WILSON, Appellant,
v.
CITY OF TAMPA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Hillsborough County; Paul L. Huey, Judge.

          Thomas A. Burns of Burns, P.A., for Appellant.

          Julia C. Mandell, City Attorney, and Kristin Serafin Ottinger, Assistant City Attorney, City of Tampa, for Appellee.

          CASANUEVA, Judge.

         Fannye Wilson challenges the trial court's order dismissing with prejudice her complaint against the City of Tampa (hereinafter "the City"). The trial court determined that prior to the commencement of her civil action, Ms. Wilson failed to comply with the statutory requirement of presuit notice demanded by section 768.28(6), Florida Statutes (2011). Ms. Wilson advances two contentions of trial court error: first, the trial court erred as a matter of law by determining that her presuit notice did not comport with the requirements of section 768.28(6) and, next, should this court conclude that the trial court did not err, its subsequent dismissal of her action with prejudice was an abuse of discretion and therefore error.

         We conclude that Ms. Wilson's first contention is meritorious and hold that the trial court erred in its conclusion of noncompliance. Accordingly, it is unnecessary to reach the second contention's merits.

         I. FACTUAL BACKGROUND

         Ms. Wilson filed suit against the City on March 12, 2015, alleging that on April 7, 2011, she was picking up trash in her yard at 1420 Jean Street in Tampa when a storm drain in the custody and control of the City suddenly and unexpectedly broke, causing her to fall into the sewer and become seriously injured.

         Importantly, Ms. Wilson's complaint asserted that she properly filed the notice of claim as required by section 768.28. Through a motion to dismiss, the City challenged this assertion, contending the statutory notice requirement had not been met. The City claimed the notice was deficient in three respects: first, it did not provide a specific address for the storm drain's location; second, it did not state the time the incident occurred; and, finally, the notice failed to properly address the sex of Ms. Wilson. At the hearing on the motion to dismiss, the City abandoned the latter two bases of the motion. Therefore, the issue in this appeal is whether the notice was insufficient due to its failure to specify an exact street address.

         II. NOTICE OF CLAIM

         Before instituting her action, on March 30, 2012, Ms. Wilson provided a written notice of claim by certified mail to the City's Risk Management Department. The notice provides her name, date of birth, and other identifying information. It also states that Ms. Wilson was injured when she was "clearing grass out of the yard, " she stepped on a storm drain grate, and the grate broke. Regarding the location of the accident, the notice states:

"Place of Accident: Jean St., Tampa, Hillsborough County, FL on ...

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