Opinion
No. 46A03-9206-CV-00193.
November 16, 1992. Rehearing Denied December 28, 1992.
Appeal from the Circuit Court, La Porte County, Robert S. Gettinger, J.
Philip E. Kalamaros, Edward N. Kalamaros Associates, Professional Corporation, South Bend, for appellants-defendants.
Steven J. Moerlein, Moerlein Law Office, South Bend, for appellee-plaintiff.
Appellants-defendants South Bend Community School Corporation and Bernie M. Niedbalski appeal the trial court's denial of their motion for summary judgment as to the claim of Sara Page.
The trial court granted appellants' motion for summary judgment as to the claim of Sandra Widawski, and she has not appealed.
The facts relevant to the appeal disclose that on September 18, 1989, Page, a minor, injured herself while participating in a gym class. The gym was located in a school in the South Bend Community School Corporation, and the class was taught by Niedbalski. Page and her mother, Widawski, sent a notice of tort claim to appellants on September 17, 1991, and filed a complaint against appellants on September 18, 1991. Appellants filed a motion for summary judgment on March 30, 1992, and the court held a hearing on the motion on June 1, 1992. On June 3, 1992, the court entered findings with its order granting summary judgment as to Widawski's claim but denying summary judgment as to Page's claim.
This Court finds the following issue dispositive of the appeal: whether a minor qualifies as an incapacitated person for purposes of tolling the 180-day notice requirement of the Indiana Tort Claims Act.
As both parties note, prior to 1989, IND. CODE § 34-4-16.5-8 (1988 Ed.) read as follows:
"If a person is incompetent to give notice as required in section 6 or 7 of this chapter, his claim is barred unless notice is filed within one hundred eighty (180) days after the incompetency is removed."
The definition of incompetent expressly included minors:
"`Incompetent' means a person who is under the age of eighteen (18) years or is incapable by reason of insanity, mental illness, or other incapacity of either managing his property or caring for himself or both."
IND. CODE § 34-4-16.5-2(d) (1988 Ed.). However, the 1989 amendments to the statutes substituted "incapacitated" for "incompetent" and defined incapacitated as follows:
"`Incapacitated person' means an individual who:
(1) cannot be located upon reasonable inquiry;
(2) is unable:
(A) to manage in whole or in part the individual's property;
(B) to provide self-care; or
(C) both;
because of insanity, mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, undue influence of others on the individual, or other incapacity; or
(3) has a developmental disability (as defined in IC 12-7-2-61)."
IND. CODE § 29-3-1-7.5 (1992 Supp.). As Page notes, if the term incapacitated person includes minors like herself, minors must fall within the "other incapacity" category. The trial court, looking at the dictionary definition of incapacity and the fact that IND. CODE § 29-3-1-7.5 does not expressly exclude minors, found that minors do fall within the "other incapacity" category.
IND. CODE § 34-4-16.5-2(d) (1992 Supp.) states that "`[i]ncapacitated' has the meaning set forth in IC 29-3-1-7.5."
A trial court's entry of findings with its order denying summary judgment is helpful to the reviewing court, but the findings are not binding in any way. P.M.S., Inc. v. Jakubowski (1992), Ind. App., 585 N.E.2d 1380, 1381 n. 1. As discussed above, the pre-amendment statutes expressly included minors within their coverage while the post-amendment statutes do not. Moreover, the pre-amendment version of IND. CODE § 34-4-16.5-2(d) clearly distinguished minority from "other incapacity":
"`Incompetent' means a person who is under the age of eighteen (18) years or is incapable by reason of insanity, mental illness, or other incapacity of either managing his property or caring for himself or both."
(Emphasis supplied.) The post-amendment definition of incapacitated person in IND. CODE § 29-3-1-7.5 tracks the language of the latter portion of the above statute while a separate statute, IND. CODE § 29-3-1-10, tracks the language of the former portion. IND. CODE § 29-3-1-2 (1992 Supp.) also distinguishes minors from incapacitated persons:
IND. CODE § 29-3-1-10 defines minor as follows: "`Minor' means an individual who is less than eighteen (18) years of age and who is not an emancipated minor."
"`Claim' means, with respect to an incapacitated person or a minor, any liability of the incapacitated person or minor, whether arising in contract, tort, or otherwise, and any liability against an incapacitated person's or a minor's property that arises before, at, or after the appointment of a guardian, including expenses of administration." (Emphasis supplied.)
In light of the above, this Court finds that minors do not qualify as incapacitated persons for purposes of tolling the 180-day notice requirement of the Tort Claims Act. The trial court's denial of summary judgment is reversed.
Reversed.
STATON and CONOVER, JJ., concur.