In a recent decision, approved for publication, Madbak v City of Farmington Hills (COA No. 364734, 11/21/2023), the Court of Appeals affirmed the granting of the City’s Motion for Summary Disposition for failure to comply with the notice requirements of MCL 691.1404.
Plaintiff claimed she was injured on August 27, 2020, while she was walking with her adult son, on a street in Farmington Hills. She claimed she got her shoe stuck in a hole, fell, and fractured her wrist requiring surgery and physical therapy. Plaintiff filed suit against the City, relying upon MCL 691.1402(1), which provides that “[a] person who sustains a 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 damages suffered by him or her from the governmental agency.” Id. Under the GLTA (governmental tort liability act), however, “…unless one of the five exceptions applies, governmental agencies are immune from tort liability when they are engaged in a governmental function.” Wigfall v Detroit, 504 Mich 330, 337 citing MCL 691.1407(1).
Furthermore, MCL 691.1404 provides strict notice requirements with which plaintiffs must comply to establish tort liability: (1) the notice must be served on the governmental agency of the occurrence, within 120 days of the injury, which specifies the exact location and nature of defect, injury sustained, and names of all witnesses; and (2) the notice must be served either personally or via certified mail, return receipt requested, upon the individual who may be lawfully served for that governmental agency. The Michigan Supreme Court has held that MCL 691.1404 is “straightforward, clear, unambiguous” and “must be enforced as written.” Rowland v Washtenaw Co Rd Comm, 477 Mich 197 (2007). The “notice provision is not satisfied if notice is served more than 120 days after the accident even if there is no prejudice.” Id. (emphasis original).
In the present case, plaintiff’s counsel mailed a timely letter via certified mail to the City which was received November 12, 2020. The letter invoked MCL 691.1404, but only made a “claim for personal injuries allegedly caused [by] the negligence of the City of Farmington Hills, MI or its agents caused by a defective road” located “Near Intersection of Wilton Court and Wilton Drive, Farmington Hills, MI[.]” Later, on December 29, 2020, a third party liability adjuster assigned to the City emailed plaintiff’s counsel asking for the date of loss to start the claim process. That same date, 121 days after the date of plaintiff’s injuries, plaintiff’s counsel responded via email providing the date of injury and referring to plaintiff’s attached medical records and photographs of the “actual roadway.” While medical records were attached, no photographs were attached.
The Court of Appeals affirmed the trial court’s dismissal of plaintiff’s claims finding the initial notice, while timely and properly served, was insufficient and the supplemental information was untimely, improperly served and also insufficient.
The initial notice was insufficient because, although served within 120 days of her injury, it failed to specify the exact location and nature of the defect and her injury, nor did it name her son as a witness. Plaintiff only identified the general intersection where her fall occurred and did not provide any direction as to where in relation to the intersection her fall occurred or what landmarks could be used to identify the exact location. Plaintiff also did not provide any photographs of the specific location or specific defect. Plaintiff’s description of the defect as a “defective road” was also insufficient to notify the City of the exact nature of the defect, and “personal injury” was not sufficient to notify the City of her claimed injuries. The Court noted that plaintiff’s deposition testimony established she was able to provide this more specific information in her initial notice but failed to do so.
Plaintiff’s supplemental information was also insufficient because it was provided to a third-party adjuster who was not an agent of the City. The supplemental information was also provided on the 121st day after plaintiff’s injuries, which was one day beyond the time requirements in the statute.
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Sarah Nadeau, Editor of The Garan Report Publication, is a Shareholder in our Detroit Office. Sarah can be reached at 313.446.1530 or snadeau@garanlucow.com