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Russell v. City of Detroit

Court of Appeals of Michigan

October 10, 2017

LAWRENCE RUSSELL, Plaintiff-Appellee,
v.
CITY OF DETROIT, Defendant-Appellant.

         Wayne Circuit Court LC No. 15-002883-NO

          Before: Shapiro, P.J., and Hoekstra and M. J. Kelly, JJ.

          PER CURIAM

         In this action related to an injury arising from a purportedly defective city street, defendant the City of Detroit ("the City") sought summary disposition pursuant to MCR 2.116(C)(7) on the ground that plaintiff failed to provide notice in compliance with the Government Tort Liability Act (GTLA), MCL 691.1401 et seq. The trial court denied the City's motion, and the City now appeals as of right. Because plaintiff provided notice to the City as required by MCL 691.1404(1), we affirm.

         According to plaintiff's complaint, on July 20, 2014, he fractured his leg after he drove his motorcycle through a pothole, lost control, and then crashed. In October of 2014, plaintiff's attorney sent the City notice of plaintiff's injury and the defect in the roadway. On March 6, 2015, plaintiff filed his complaint in this case. Thereafter, the City moved for summary disposition, asserting that summary disposition was appropriate because plaintiff failed to provide notice as required by MCL 691.1404(1). Specifically, the City argued that plaintiff's notice was deficient because (1) the notice failed to specify the exact location and exact nature of the defect, and (2) the notice was served by plaintiff's attorney rather than plaintiff. The trial court rejected these arguments. The City now appeals as of right.

         On appeal, the City argues that the trial court erred by denying its motion for summary disposition under MCR 2.116(C)(7) because plaintiff failed to provide notice as required by MCL 691.1404(1). In particular, as in the trial court, the City argues that plaintiff failed to provide notice of the exact location and nature of the defect. Additionally, the City contends that plaintiff was required to personally serve notice on the City, meaning that service by plaintiff's attorney was insufficient to comply with MCL 691.1404(1).

         I. STANDARDS OF REVIEW

          "This Court reviews motions for summary disposition under MCR 2.116(C)(7) de novo." Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich. 378, 386; 738 N.W.2d 664 (2007). "Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by immunity granted by law." State Farm Fire & Cas Co v Corby Energy Servs, Inc, 271 Mich.App. 480, 482; 722 N.W.2d 906 (2006). The applicability of governmental immunity and its statutory exceptions are reviewed de novo. Moraccini v Sterling Hts, 296 Mich.App. 387, 391; 822 N.W.2d 799 (2012). "Questions of statutory interpretation are also reviewed de novo." Rowland v Washtenaw Co Road Comm, 477 Mich. 197, 202; 731 N.W.2d 41 (2007).

         II. EXACT LOCATION AND NATURE OF THE DEFECT

         The City first argues that the location and nature of the defect were not adequately described in the notice provided by plaintiff. The City contends that plaintiff merely provided the location of an intersection, which encompasses a broad area and was not sufficient to identify the "exact location" where plaintiff's injury occurred. With regard to the nature of the defect, the City maintains that plaintiff failed to sufficiently describe the nature of the alleged defect.

         Under the GTLA, "governmental agencies are immune from tort liability when engaged in a governmental function." Nawrocki v Macomb Co Rd Comm, 463 Mich. 143, 156; 615 N.W.2d 702 (2000), citing MCL 691.1407(1). "[T]he immunity conferred upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly construed." Nawrocki, 463 Mich. at 158. One such exception is the highway exception codified at MCL 691.1402(1). Under MCL 691.1402(1), "[e]ach governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel." If a governmental agency fails to do so, "[a] person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency." MCL 691.1402(1).

         However, as a prerequisite to recovering damages under the highway exception, the injured person must serve notice on the governmental agency pursuant to MCL 691.1404(1), which, in pertinent part states:

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) shall serve a notice on the governmental agency of the occurrence of the injury and the defect. The 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.

"MCL 691.1404 is straightforward, clear, unambiguous, and not constitutionally suspect." Rowland, 477 Mich. at 219. Consequently, the statute "must be enforced as written." Id. "Failure to provide adequate notice under this statute is fatal to a plaintiff's claim against a governmental agency." McLean v Dearborn, 302 Mich.App. 68, 74; 836 N.W.2d 916 (2013).

         Under the plain language of MCL 691.1404(1), "a claimant must provide, within 120 days from the time of injury, notice to the governmental agency that (1) specifies the exact location and nature of the defect, (2) identifies the injuries sustained, and (3) provides the names of any known witnesses." Burise v Pontiac, 282 Mich.App. 646, 653; 766 N.W.2d 311 (2009). "The notice need not be provided in a particular form. It is sufficient if it is timely and contains the requisite information." Plunkett v Dep't of Transp, 286 Mich.App. 168, 176; 779 N.W.2d 263 (2009). Further, the information provided in the notice "need only be understandable and sufficient to bring the important facts to the governmental entity's attention." Id. The sufficiency of the notice is judged on the entire notice and all the facts stated therein. Rule v Bay City, 12 Mich.App. 503, 508; 163 ...


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