Edwards v. Iron County ex rel. Valley View Medical Center , 531 P.2d 476 ( 1975 )

TUCKETT, Justice:

This is an action for personal injuries suffered by the plaintiff while she was a patient at the Valley View Medical Center, a hospital operated by the County. The court below granted the defendant’s motion for a dismissal and the plaintiff has appealed.

The facts in this case are simple and essentially undisputed. The plaintiff was in the hospital operated by the defendant, being treated for an illness. The plaintiff’s physician prescribed walking with assistance as part of therapy. On June 8, 1972, the plaintiff was being assisted by a practical nurse employed by the defendant in taking a walking exercise when the nurse left the plaintiff momentarily for the purpose of closing a door. During the absence of the nurse, the plaintiff fell, sustaining a fracture to her arm. The fracture was first treated at a hospital in Salt Lake City and later at the defendant’s hospital in Iron County.

No notice of a claim was filed by the plaintiff with the County. The plaintiff filed her complaint on June 7, 1973, and a summons was served on September 6, 1973. The first notification of plaintiff’s claim came when these proceedings were initiated. The trial court dismissed the complaint on the grounds that the plaintiff had failed to file a notice of a claim as provided for in Section 63-30-13, U.C.A.1953, which states that a claim against a political subdivision shall be forever barred unless notice thereof is filed within 90 days after the cause of action arises. The fact that employees of the County knew of the plaintiff’s injuries at the time they occurred does not dispense with the necessity of filing a timely claim.¹ The plaintiff’s claim would also be barred by the provisions of Section 17-15-10, U. C.A.1953.

The filing of a complaint with the clerk of the district court, even though done one day before the year had elapsed, would not comply with the requirements of filing a claim as required by Section 17-15-10, U.C.A.1953. The complaint could sit in the files of the district court indefinitely without the public officials being aware of the nature of the claim so they could perform their duties with respect to it.² Whether the service of summons would constitute presentation of such a claim might present a different question, but the summons was not served until September 6, three months after the year had expired. If the established rules are to be given effect, this claim was filed too late. Inasmuch as it affirmatively appears as a matter of law that the plaintiff has no cause of action, the trial court’s judgment of dismissal should be sustained.³

The order of' the district court dismissing the complaint is affirmed. No costs awarded.

HENRIOD, C. J., and ELLETT and CROCKETT, JJ., concur.

1 . Varoz v. Sevey, 29 Utah 2d 158, 506 P.2d 435.

2 . See State v. Dixon, 22 Utah 2d 58, 448 P. 2d 716.

3 .That the judgment under review should be affirmed if it is sustainable upon any proper legal ground apparent from the record see Goodsel v. Dept. of Business Regl., Utah, 523 P.2d 1230.