Gregory A. Sobkowski | Hodges & Davis Law Firm Northwest Indiana

The Indiana Tort Claims Act (“ITCA”) governs tort claims against local governmental entities. The ITCA requires that notice of a claim must be provided to the governing body of the governmental entity, and to the Indiana Political Subdivision Risk Management Commission within 180 days of the complained injury.

Strict compliance with the notice requirements is not mandatory. Instead, a plaintiff need only substantially comply with the ITCA’s requirements. Failure to substantially comply typically results in the claim being barred; but the claim may still proceed if the governmental entity or its agent induces the plaintiff to believe that compliance with the notice requirement is unnecessary.

The Indiana Court of Appeals recently addressed that issue in Madison Consolidated Schools v. Trisha Thurston. In that case, a student was riding a school bus when it struck a guardrail, causing injuries to the student. The student’s mother and the school’s insurer agreed to postpone discussion of settlement until medical treatment had been completed. The insurer indicated that a lawsuit would need to be filed within a certain time, but failed to mention the formal notice requirements of the ITCA. The mother failed to provide formal notice, and filed suit less than two years thereafter. While the school argued that the claim was time-barred, the mother argued that notice was unnecessary since the insurer had recommended waiting for medical care to conclude before any discussion of settlement and never informed her that a tort claim notice was required.

The Court of Appeals determined that cases may proceed under the ITCA under the doctrine of “equitable estoppel”. A plaintiff wishing to base a claim on equitable estoppel must show: (1) lack of actual and constructive knowledge of the facts in question; (2) reliance upon the conduct of the opposing party; and (3) action based on that conduct that changed the plaintiff’s position. While government entities are not generally subject to claims based on equitable estoppel, the Court concluded that those claims do have merit when it is clear that the agents of the governmental entity made representations which induced the Plaintiff to reasonably believe that formal notice was not required. The Court in the Thurston case found that there was evidence of multiple communications between the school’s insurer and the student’s mother and that the notice requirement was never raised or discussed. The Court, therefore, found that whether the student’s mother was excused from complying with the notice requirements of the ITCA based on the theory of equitable estoppel was a question to be decided by the jury at trial.

In light of this case, government entities and their agents must be careful when discussing potential claims with would-be plaintiffs.


This article constitutes a brief summary of the notice requirement under the ITCA. The information provided does not constitute legal advice, nor does it establish an attorney/client relationship. If you have any questions regarding the contents of this article, please contact the attorneys at Hodges and Davis.


Hodges & Davis- August 2020

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