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McCarthy v. City of Trenton

Supreme Court of Michigan

May 1, 2015

CATHERINE N. MCCARTHY, Plaintiff-Appellant,
v.
CITY OF TRENTON, Defendant-Appellee

COA: 316600. Wayne CC: 12-016668-NO.

Robert P. Young, Jr., Chief Justice. Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Justices. BERNSTEIN, J. (dissenting).

Order

On order of the Court, the application for leave to appeal the September 18, 2014 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

DISSENT

Bernstein, J. ( dissenting ).

I respectfully dissent from this Court's decision to deny leave to appeal in this case, as I believe that the Court of Appeals' treatment of the notice requirements of the governmental tort liability act (GTLA), MCL 691.1401 et seq., needlessly complicates the concept of notice and may lead to confusion among legal practitioners.

The GTLA provides an exception to governmental immunity for injuries arising out of highway defects. The statute defines " highway" as including--among other thoroughfares--public sidewalks. MCL 691.1401(c). To avail himself or herself of the exception, the injured person must give notice in accordance with MCL 691.1404, which states in relevant part:

(1) As a condition to any recovery for injuries sustained by reason of any defective highway, the injured person, within 120 days from the time the injury occurred, except as otherwise provided in subsection (3)[1] shall serve a notice on the governmental agency of the occurrence of the injury and the defect. The [497 Mich. 1019] notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.
(2) The notice may be served upon any individual, either personally, or by certified mail, return receipt requested, who may lawfully be served with civil process directed against the governmental agency, anything to the contrary in the charter of any municipal corporation notwithstanding.

In an action against a city, the individuals who may be served with notice under Subsection (2) are the mayor, the city clerk, and the city attorney. MCR 2.105(G)(2).

On February 5, 2012, plaintiff tripped and fell from a sidewalk in the city of Trenton, which is the defendant in this case. She sustained injuries requiring oral surgery and other dental work. Approximately two weeks after the incident, on February 21, plaintiff submitted notice via first-class mail to the city's mayor and the city clerk. The letter described the date and location of the incident and the nature of the defect and specified that there were no known witnesses to the fall. However, it did not describe the nature of plaintiff's injury. On February 23, a representative of Travelers Indemnity Company, which was defendant's insurer, contacted plaintiff's attorney by phone and received a brief description of plaintiff's injuries. That same day, Travelers sent a letter to plaintiff's attorney requesting medical documentation. Plaintiff's counsel submitted the relevant information in a series of letters dated March 5, March 12, and April 25, 2012. Subsequent negotiations between Travelers and plaintiff's attorney

Page 645

failed to satisfactorily resolve the case, and plaintiff filed suit against defendant on December 17, 2012.

Defendant moved for summary disposition under MCR 2.116(C)(7) because of plaintiff's failures to comply with the notice requirements--specifically, that plaintiff had sent notice via first-class mail rather than certified mail and had not provided information about her injuries to a proper party. The trial court denied this motion in an opinion and order dated May 16, 2013, determining that plaintiff had substantially complied with the notice requirements by ...


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