PETRA PIKE formerly known as PETRA HANRAHAN, Plaintiff-Appellant,
NORTHERN MICHIGAN UNIVERSITY and PETER BOSMA, Defendant-Appellees.
of Claims LC No. 17-000312-MZ
Before: Swartzle, P.J., and Cavanagh and Cameron, JJ.
negligence action, plaintiff appeals as of right an order of
the Court of Claims granting summary disposition to
defendants, Northern Michigan University (NMU) and Peter
Bosma, under MCR 2.116(C)(7) on the basis of governmental
immunity. We affirm as to NMU, but reverse as to Bosma and
remand for further proceedings.
a public university in the Michigan university system,
primarily located in Marquette. One of the buildings on
NMU's campus in Marquette is the Physical Education and
Instructional Facility (the Facility). Bosma was an
instructor employed by NMU and taught a class designated as
RE 251, called Adventure Activities, in which plaintiff was
class on April 23, 2015, Bosma instructed his students to use
a rock-climbing wall. Students were paired up and required to
work together, with one student attempting to climb the rock
wall while blindfolded, relying solely on verbal instructions
provided by the other student who remained on the ground.
Students climbing the rock wall were not provided any
training or safety equipment, such as a helmet or harness.
Plaintiff was paired with another student and designated the
climber. Plaintiff was allegedly given poor instructions by
her partner on the ground and fell from near the rock
wall's top, striking her head and body on the ground.
notice of intent (NOI) to file a claim against NMU dated
August 21, 2015 was mailed to the president of NMU and the
Court of Claims. Only plaintiff's attorney signed the
NOI. The NOI was filed with the Court of Claims on August 24,
December 1, 2017, plaintiff filed her complaint, alleging
negligence against NMU under the public building exception to
governmental immunity, MCL 691.1406, and gross negligence
against Bosma, as well as NMU via vicarious liability, under
March 2018, defendants filed a motion for summary disposition
under MCR 2.116(C)(7), arguing that plaintiff's NOI was
insufficient because MCL 600.6431(1) required her to file an
NOI "signed and verified by the claimant;" thus,
her claims must be dismissed. Further, the Court of Claims
did not have jurisdiction over Bosma because he was an
instructor, not a "state officer;" thus, he was
entitled to summary dismissal under MCR 2.116(C)(1).
responded to defendant's motion for summary disposition,
arguing that the requirements of MCL 600.6431(1) did not
apply because her claim against NMU was brought under MCL
691.1406 which sets forth the applicable notice requirements
and those requirements were satisfied. Notice was timely
served by mail on NMU's president as required by MCL
691.1406, and this notice also constituted notice to the
State of Michigan in the manner specified by MCL 691.1404, as
prescribed by MCL 691.1406. Further, as clearly stated in MCL
600.6419(7), the Court of Claims had jurisdiction over Bosma
who was an employee of the state.
filed a reply brief, arguing that MCL 691.1404 required
plaintiff to file her NOI with the Court of Claims within 120
days from the date of the incident. But plaintiff admitted in
her complaint that her NOI was filed with the Court of Claims
on August 24, 2015, which was three days too late; 120 days
from April 23, 2015 was August 21, 2015. Thus, as explained
in Goodhue v Dep't of Transp, 319 Mich.App. 526;
904 N.W.2d 203 (2017), notice was deficient and the case must
April 24, 2018, the Court of Claims granted defendants'
motion for summary disposition under MCR 2.116(C)(7),
concluding that plaintiff failed to comply with MCL 691.1404
because her NOI was filed with the Court of Claims more than
120 days after the injury occurred. Notice of this action
against the state had to be filed with the clerk of the Court
of Claims within 120 days of the incident. The Court of
Claims noted that, although plaintiff did not present any
argument as to whether her gross negligence claim against NMU
should also be dismissed for failure to comply with the
120-day notice requirement, in light of the overlap of the
allegations, dismissal was proper for failure to provide the
requisite notice. Further, the Court of Claims dismissed
plaintiff's gross negligence claim against Bosma because
plaintiff failed "to satisfy MCL 600.6431's
signature and verification requirements as to that
count." The Court rejected defendants' argument that
it lacked jurisdiction over Bosma as "entirely without
merit" in light of MCL 600.6419(7); he was an employee
filed a motion for reconsideration, conceding that her NOI
had not been "filed" with the Court of Claims by
August 21, 2015, but asserting that MCL 691.1406 and MCL
691.1404 only required that the notice be "served"
on the responsible agency, i.e., NMU, within 120 days and it
was so served by mail. Further, no notice of any kind was
required to maintain a claim against Bosma because MCL
600.6431 only applies to claims "against the state"
and Bosma is not "the state." Thus, summary
disposition was improper as to plaintiff's claim against
Bosma. The Court of Claims denied the motion for
reconsideration. Plaintiff now appeals.
Plaintiff argues that NMU was not entitled to summary
disposition because she complied with the notice requirements
set forth in MCL 691.1404, as prescribed by MCL 691.1406,
which was ...