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Pike v. Northern Michigan University

Court of Appeals of Michigan

April 25, 2019

PETRA PIKE formerly known as PETRA HANRAHAN, Plaintiff-Appellant,
v.
NORTHERN MICHIGAN UNIVERSITY and PETER BOSMA, Defendant-Appellees.

          Court of Claims LC No. 17-000312-MZ

          Before: Swartzle, P.J., and Cavanagh and Cameron, JJ.

          Cavanagh, J.

         In this 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.

         NMU is 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 enrolled.

         During 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.

         A 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, 2015.

         On 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 MCL 691.1407(2).

         In 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).

         Plaintiff 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.

         Defendants 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 be dismissed.

         On 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 of NMU.

         Plaintiff 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 ...


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