Pike v. N. Mich. Univ., No. 344083

CourtCourt of Appeal of Michigan (US)
Writing for the CourtCavanagh, J.
Citation935 N.W.2d 86,327 Mich.App. 683
Docket NumberNo. 344083
Decision Date25 April 2019
Parties Petra PIKE formerly known as Petra Hanrahan, Plaintiff-Appellant, v. NORTHERN MICHIGAN UNIVERSITY and Peter Bosma, Defendant-Appellees.

327 Mich.App. 683
935 N.W.2d 86

Petra PIKE formerly known as Petra Hanrahan, Plaintiff-Appellant,
NORTHERN MICHIGAN UNIVERSITY and Peter Bosma, Defendant-Appellees.

No. 344083

Court of Appeals of Michigan.

Submitted April 2, 2019, at Lansing.
Decided April 25, 2019, at 9:05 a.m.

Mouw & Celello, PC, Iron Mountain (by Robert A. Pirkola ) for plaintiff.

Miller, Canfield, Paddock and Stone, PLC, Kalamazoo (by Kurt P. McCamman and Philip E. Hamilton ) for defendants.

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

Cavanagh, J.

327 Mich.App. 687

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 we reverse as to Bosma and remand for further proceedings.

NMU is a public university in the Michigan university system and is 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; he 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; one student was instructed to climb the rock wall while blindfolded, relying solely on verbal instructions

327 Mich.App. 688

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

935 N.W.2d 88

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 moved 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, defendants argued, her claims must be dismissed. Further, defendants argued that the Court of Claims did not have jurisdiction over Bosma because he was an instructor, not a "state officer," and therefore he was entitled to summary dismissal under MCR 2.116(C)(1).

Plaintiff responded to defendants' 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. Plaintiff argued

327 Mich.App. 689

that notice was timely served by mail on NMU's president as required by MCL 691.1406 and that 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, plaintiff argued that, 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, defendants argued that, 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 was also subject to dismissal 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

327 Mich.App. 690

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) because Bosma was an employee of NMU.

Plaintiff moved 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

935 N.W.2d 89

be "served" on the responsible agency, i.e., NMU, within 120 days and that it was so served by mail. Further, plaintiff argued that 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, plaintiff argued that 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 sufficient to constitute compliance with MCL 600.6431. We disagree.

This Court reviews de novo a trial court's grant of summary disposition as well as the "applicability of governmental immunity and the statutory exceptions to immunity...." Moraccini v. Sterling Hts. , 296 Mich. App. 387, 391, 822 N.W.2d 799 (2012). Summary disposition under MCR 2.116(C)(7) is appropriate if a claim is barred because of immunity granted by law. Id . "The contents of the complaint must be accepted as true unless contradicted by the documentary evidence." Id. Any documentary evidence is viewed in the light most favorable to the nonmoving party. Id. A factual dispute about whether a plaintiff's claim is barred precludes summary disposition. Id. If there is no factual dispute,

327 Mich.App. 691

a trial court must determine whether summary disposition is appropriate under MCR 2.116(C)(7) as a matter of law. Id. We also consider de novo issues of statutory interpretation. Goodhue , 319 Mich. App. at 530, 904 N.W.2d 203.

The governmental tort liability act, MCL 691.1401 et seq. , generally provides immunity from tort liability to a "governmental agency" if the agency "is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1). A "governmental agency" is defined by the act to include "this state or a political subdivision." MCL 691.1401(a). And "state" is defined to include this state and its agencies and departments, as well as a public university or college of this state. MCL 691.1401(g). Because NMU is a state university, it is generally entitled to tort immunity.

There are several exceptions to the broad grant of immunity, and one such exception is the public-building exception, MCL 691.1406. Goodhue , 319 Mich. App. at 531, 904 N.W.2d 203. Under the public-building exception, a governmental agency may be "liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building" under certain circumstances. MCL 691.1406. Consistently with the fact that "the government may voluntarily subject itself to liability, it may also place conditions or limitations on the liability imposed." McCahan v. Brennan , 492 Mich. 730, 736, 822 N.W.2d 747 (2012). A condition for recovery under the public-building exception, MCL 691.1406, is the provision of notice as follows:

[T]he injured person, within 120 days from the time the injury occurred, shall serve a notice on the responsible governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.
327 Mich.App. 692
The notice may be served upon any individual, either

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