Meredith v. City of Melvindale, 1

• Decision Date: 03 March 1969
• Docket Number: No. 1,1
• Citation: 165 N.W.2d 7,381 Mich. 572
• Parties: Edward MEREDITH, Individually and as Next Friend of Fred Meredith, Plaintiff-Appellant, v. CITY OF MELVINDALE, a Municipal Corporation, and Melvindale-Northern Allen Park Public Schools of the County of Wayne, a Municipal Corporation, jointly and severally, Defendants-Appellees.
• Court: Michigan Supreme Court

Page 7

165 N.W.2d 7

381 Mich. 572

Edward MEREDITH, Individually and as Next Friend of Fred Meredith, Plaintiff-Appellant, v. CITY OF MELVINDALE, a Municipal Corporation, and Melvindale-Northern Allen Park Public Schools of the County of Wayne, a Municipal Corporation, jointly and severally Defendants-Appellees.

No. 1.

Supreme Court of Michigan.

March 3, 1969.

David H. Fried, Detroit, for plaintiff-appellant; Norman Zemke, Detroit, of counsel.

Cary, BeGole, Martin, Bohall & Joselyn, Detroit, for defendant-appellee.

Before the Entire Bench.

THOMAS M. KAVANAGH, Justice.

Plaintiff, individually and as next friend of his minor son, Fred Meredith, filed an action on May 17, 1966, in the Wayne circuit court against the City of Melvindale, a municipal corporation, and Melvindale-Northern Allen Park Public Schools, a municipal corporation, jointly and severally. Plaintiff sought to recover damages for injuries allegedly sustained by his minor son in an accident occurring while he was participating in a recreational activity.

Defendant City of Melvindale served notice of an affirmative defense alleging plaintiff's claim was barred due to failure to give defendant notice within 60 days, as required by defendant's charter.

Defendant city moved for a summary judgment under GCR 1963, 117, for the reason that plaintiff had failed to state a claim upon which relief could be granted, in that this claim against a municipality operating a recreational area under an agreement with a school district is barred under the sovereign immunity granted to an agency of the State. Defendant city moved, in the alternative, for an accelerated judgment under GCR 1963, 116.1(5), on the ground that The plaintiff failed to give the 60-day notice required in the charter of the city of Melvindale, as set forth in defendant's affirmative defense. Defendant attached an affidavit of its city clerk, setting forth the contents of defendant's defense and attesting that no notice was served on her as city clerk, nor on the mayor, nor on any member of the city council, as required by the city charter.

The circuit court entered as order granting defendant's motion for summary judgment. This order was pursuant to a written opinion filed by the trial court, in which it held that 'the notice was defective and not properly served in that it was not served on the city clerk or the mayor or any member of the common council as required.' The opinion also held that the court could not go along with the theory of the plaintiff and believed that the defendants were engaged in a governmental function and were exempt from liability.

Plaintiff filed a claim of appeal, and the Court of Appeals sustained the judgment of the lower court. 11 Mich.App. 208, 160 N.W.2d 793. This Court denied leave as to defendant school district, but granted leave to appeal as to defendant City of Melvindale, limited however to the sufficiency of the notice of claim. 381 Mich. 758.

The facts necessary to an understanding of the case are as follows: Plaintiff's minor son was participating in recreational activities on June 23, 1964, in an area operated, maintained and controlled by defendant. The boy had climbed a stepladder to recover a ball that had landed on the roof of a school. He fell off the ladder sustaining injuries. The City of Melvindale and Melvindale-Northern Allen Park Public Schools had joined together to form a commission which operated the recreational program. Plaintiff alleged that defendants owed the plaintiff certain duties, that the defendants violated those duties, and that the violation consisted of the following acts of carelessness, recklessness wrongdoing and negligence on the part of the defendants:

'A. In failing to provide adequate supervisory personnel.

'B. In allowing plaintiff's ward to climb a stepladder.

'C. In not maintaining sufficient supervisory personnel at defendants' play area.

'D. In not supplying proper equipment at its play area.

'E. In failing to properly supervise children at its play area and specifically plaintiff's ward.

'F. In allowing plaintiff's ward to fall from a stepladder.'

On July 18, 1964, plaintiff sent a registered letter to the city attorney for defendant, who was a full-time employee and maintained his office in defendant's city hall. The letter read:

                [381 Mich. 576] 'July 18, 1964
                'Mr. Oscar Park
                City Attorney
                Melvindale, Mich
                

'Dear Sir:

'I am writing in reference to an accident that occurred to my son Fred Meredith at the Palmer School playground on June 23.

'My son was participating in the supervised program, and at the time of the accident the supervisor was not on the school premises. We feel if he were on the job the accident would not have happened.

'From this accident my son has lost the sight of one eye. He spent 5 days in the hospital with a concussion of the brain and a fracture of one arm, plus the eye. Due to the fact that we had no hospitalization and had to call in several specialists for the arm and the eye, the expense incurred from this accident is far beyond our means of paying. We would like to have an appointment with you concerning this accident.

'You may contact us by phoning WA--8--2904. We have tried to contact you this past week but received no response.

'Mr. Edward Meredith

2791 Grace

Melvindale'

Eleven months later, but also eleven months before filing suit, plaintiff's attorney gave defendant city notice of the injury. This letter of notice was dated June 3, 1965, and read:

                'June 3, 1965
                'City of Melvindale
                3100 Oakwood Boulevard
                Melvindale, Michigan
                'Re: Fred Meredith
                

'Gentlemen:

Please be advised that I represent Edward Meredith, father of Fred Meredith, a minor, who was seriously, painfully and permanently injured as a result of an accident that occurred in the school yard of the Palmer School, Melvindale, Michigan, on June 23, 1964.

'At this time, it is impossible to say precisely what injuries Fred Meredith sustained, other than to say that he lost vision in his right eye as a result of this accident.

'Moreover, it is impossible to state all of the witnesses to the accident, other than Jim Arnett.

'After my investigation is completed, upon written request, I will gladly supply you with a list of all known witnesses to the accident that my investigation unturns. Furthermore, I will be most happy to supply you with all medical information that I have in my possession at that time.

'This is further to advise, that Edward Meredith, as father of Fred Meredith, has entered into a contract with the writer and I am claiming a lien on any and all sums of money to be paid to or on behalf of Edward Meredith or Fred Meredith.

'Very truly yours,

'David H. Fried'

'DHF/amh

Plaintiff alleges in his complaint that proper notice was given to the defendants regarding plaintiff's ward's accident and injuries.

Defendant city, in its motion for accelerated judgment in the trial court, relied solely on the ground that the plaintiff failed to give the 60-day notice required in the city charter as set forth in defendant's affirmative defense. It is to be noted that the motion for accelerated judgment did not contain a ground seeking dismissal for failure to serve a proper party, although the motion was supported by an affidavit of the city clerk to the effect the notice was served upon the city attorney rather than on the mayor, the city clerk or a member of the council.

The trial court in its opinion granting the accelerated judgment held:

'The defendant City of Melvindale further raises an affirmative defense that the 60 day notice required by the charter of the City of Melvindale was not properly served upon the said city. To this the court agrees and holds that the notice was defective and not properly served in that it was not served on the city clerk or the mayor or any member of the common council as required.'

In the Court of Appeals the defendant city argued for the first time the insufficiency of the notices filed. This was a question not passed on by the trial court. It was passed on by the Court of Appeals.

In the Supreme Court the defendant city, in its brief and at oral arguments, abandoned its position relied on in the trial court as to the failure to serve within the 60 days and its position as to the failure to serve on a proper party. ¹ Consequently, neither of such contentions is passed upon in this opinion. The sole position of the city is simply that neither of the notices relied upon by plaintiff, standing alone or taken together, complies with the city charter provision that the notice shall specify the location and nature of the defect, the injury sustained, the names of witnesses and facts concerning the happening of the accident.

Plaintiff's position is that there was a substantial compliance with...