Brown v. Manistee County Road Com'n
| Decision Date | 18 April 1994 |
| Docket Number | Docket No. 146762 |
| Citation | 204 Mich.App. 574,516 N.W.2d 121 |
| Parties | Billy D. BROWN, Plaintiff-Appellant, Cross-Appellee, v. MANISTEE COUNTY ROAD COMMISSION, Defendant-Appellee, Cross-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Keller & Katkowsky, P.C. by Lawrence S. Katkowsky, Southfield, for plaintiff.
Smith, Haughey, Rice & Roegge by Craig R. Noland, Grand Rapids, for defendant.
Before NEFF, P.J., and WEAVER and GLASER, * JJ.
Plaintiff, Billy D. Brown, was injured in a motorcycle accident on June 12, 1988. Brown was traveling on Sherman Street in Manistee County when he struck a large pothole filled with torn-up blacktop, causing him to lose control of his motorcycle. Brown brought suit on June 11, 1990, alleging that defendant, the Manistee County Road Commission, was negligent.
On September 5, 1991, defendant moved for summary disposition pursuant to MCR 2.116(C)(7). Defendant asserted that Brown had failed to comply with the sixty-day notice provision contained in M.C.L. § 224.21; M.S.A. § 9.121. The trial court found Brown was subject to the sixty-day notice provision, and that defendant was prejudiced by Brown's failure to give notice because the road had been repaved sixty-one days after the accident. Brown now appeals as of right from the November 5, 1991, order granting summary disposition in favor of defendant. We affirm.
The question is whether Brown is subject to the sixty-day notice requirement set forth in M.C.L. § 224.21; M.S.A. § 9.121, such that Brown's claim is barred for failure to give notice within the required statutory period.
M.C.L. § 691.1402; M.S.A. § 3.996(102) governs governmental liability for injuries sustained on defective highways. It provides that the "liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in ... 224.21 of the Michigan Compiled Laws." M.C.L. § 224.21; M.S.A. § 9.121 states in pertinent part:
That no board of county road commissioners, subject to any liability under this section, shall be liable for damages sustained by any person upon any county road, either to his person or property, by reason of any defective county road, bridge or culvert under the jurisdiction of the board of county road commissioners, unless such person shall serve or cause to be served within 60 days after such injury shall have occurred, a notice in writing upon the clerk and upon the chairman of the board of county road commissioners of such board....
Brown argues that this provision is superseded by M.C.L. § 691.1404(1); M.S.A. § 3.996(104)(1), another provision of the act relating to governmental liability, which provides that a notice must be served within 120 days as a condition to any recovery for injuries sustained by reason of any defective highway.
Statutes that relate to the same subject or share a common purpose, such as the statutes in the instant case, are in pari materia and must be read together as one law. Feld v. Robert & Charles Beauty Salon, 174 Mich.App. 309, 317, 435 N.W.2d 474 (1989), rev'd on other grounds 435 Mich. 352, 459 N.W.2d 279 (1990). If the statutes lend themselves to a construction that avoids conflict, that construction should control. Baxter v. Gates Rubber Co., 171 Mich.App. 588, 590, 431 N.W.2d 81 (1988). When two statutes conflict, and one is specific to the subject matter while the other is only generally applicable, the specific statute prevails. People v. Tucker, 177 Mich.App. 174, 179, 441 N.W.2d 59 (1989).
Here, M.C.L. § 224.21; M.S.A. § 9.121, the county road law, deals exclusively with boards of county road commissioners. Therefore, the sixty-day notice period prevails over the 120-day notice period.
The next question is whether Brown's claim is barred under M.C.L. § 224.21; M.S.A. § 9.121 for failure to give notice. Our Supreme Court has upheld the constitutionality of such a notice requirement only where failure to give notice within the prescribed time results in actual prejudice to the defendant. See Hobbs v. Dep't of State Hwys., 398 Mich. 90, 96, 247 N.W.2d 754 (1976); Kerkstra v. Dep't of State Hwys., 398 Mich. 103, 106, 247 N.W.2d 759 (1976); Appel v. Dep't of State Hwys., 398 Mich. 110, 112, 247 N.W.2d 762 (1976).
Here, defendant made a sufficient showing of actual prejudice. The road area on which the accident occurred had been resurfaced on August 12, 1988, sixty-one days after the date of Brown's accident. Accordingly, defendant was unable to take photographs, examine the pothole, or perform other relevant tests on the surface of the road. Accordingly, we find the court properly granted defendant's motion for summary disposition.
Defendant cross appealed, asking that we reverse the court's denial of defendant's prior motion for summary disposition. Our resolution of plaintiff's appeal makes the assignment of error moot.
We affirm.
I respectfully dissent and would hold that plaintiff's claim is not barred by M.C.L. § 224.21; M.S.A. § 9.121.
In my view, the broad language of M.C.L. § 691.1404(1); M.S.A. § 3.996(104)(1) preempts application of the sixty-day provision in M.C.L. § 224.21; M.S.A. § 9.121. M.C.L. § 691.1404(1); M.S.A. § 3.996(104)(1) provides in pertinent part:
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 provided in subsection (3) shall serve a notice on the governmental agency of the occurrence of the injury and the defect. [Emphasis added.]
The first criterion in determining the intent of the Legislature is the specific language of the statute. House Speaker v. State Administrative Bd., 441 Mich. 547, 567, 495 N.W.2d 539 (1993). Words in a statute are to be accorded their plain and ordinary meaning. M.C.L. § 8.3a; M.S.A. § 2.212(1). I believe that the words emphasized in the above-quoted portion of the statute serve to override the sixty-day notice provision regarding boards of county road commissioners in M.C.L. § 224.21; M.S.A. § 9.121.
Further, the sixty-day notice provision has not been applied in any reported cases involving county road commissions since M.C.L. § 691.1404; M.S.A. § 3.996(104) was amended in 1970. Until that provision was amended by 1970 P.A. 155, it also contained a sixty-day notice provision. The amendment changed it to 120 days. There is no apparent reason for changing the notice provision regarding governmental agencies other than county road commissions, but not that of the road commissions.
Even if I agreed that the...
To continue reading
Request your trial
-
Streng v. Bd. of Mackinac Cnty. Rd. Comm'rs
...of MCL 224.21. For example, the latter gives the plaintiff only 60 days to serve notice, while the former gives 120 days.2 In Brown v. Manistee Co. Rd. Comm., 452 Mich. 354, 363, 550 N.W.2d 215 (1996) (Brown II ), overruled by Rowland, 477 Mich. at 200, 731 N.W.2d 41, the Michigan Supreme C......
-
Pearce v. Eaton Cnty. Rd. Comm'n
......EATON COUNTY ROAD COMMISSION, Defendant-Appellee, and Estate of Melissa ... We hold that Streng was wrongly decided because in Brown v. Manistee Co. Rd. Comm. , 452 Mich. 354, 550 N.W.2d 215 ......
-
Brown v. Manistee County Road Com'n
...trial court with respect to which notice provision governed. The Court of Appeals affirmed the decision of the lower court. 204 Mich.App. 574, 516 N.W.2d 121 (1994). We granted leave to appeal, 2 and reverse the decision of the Court of II. The 120-Day Provision Governs We begin with the fu......
-
Kopietz v. Zoning Bd. of Appeals for City of Village of Clarkston, Docket No. 168097
...22 N.W.2d 433 (1946), and also to interpret statutes, where possible, as consistent with one another. Brown v. Manistee Co. Road Comm., 204 Mich.App. 574, 577, 516 N.W.2d 121 (1994). Accordingly, it must be understood that § 910.04(3) gives citizens specifics regarding how the City of the V......