Question: What are the requirements of the Indiana Tort Claims Act (“ITCA”)?
Answer: The ITCA provides that a claim against a political subdivision is barred unless the prescribed notice is filed within 180 days after the loss occurs. The notice requirements of the ITCA apply not only to suits against political subdivisions but also to suits against employees of political subdivisions. Compliance with the notice provisions of the ITCA is a procedural precedent which the plaintiff must prove and which the trial court must determine before trial. Indeed, when a plaintiff fails to give the required notice, the defendant has an affirmative defense which must be raised in a responsive pleading to the plaintiff’s complaint.
Once the defendant raises failure to comply with the ITCA’s notice requirements as an affirmative defense, the burden shifts to the plaintiff to prove compliance. However, the 180 day notice requirement is subject to the following statutory exception: “If a person is incapacitated and cannot give notice as required … the person’s claim is barred unless notice is filed within one hundred eighty (180) days after the incapacity is removed.”
If you have such a claim, it is important that you discuss the claim with an attorney that understands this area of law. Getting the proper notice sent to the proper parties/entities may be a tricky process which if done incorrectly maybe fatal to your claim.
