Plunkett v. DEP'T OF TRANSPORTATION

• Decision Date: 03 November 2009
• Docket Number: Docket No. 284320.
• Citation: 779 NW 2d 263,286 Mich. App. 168
• Parties: PLUNKETT v. DEPARTMENT OF TRANSPORTATION.
• Court: Court of Appeal of Michigan — District of US

779 N.W.2d 263

286 Mich. App. 168

PLUNKETT v. DEPARTMENT OF TRANSPORTATION.

Docket No. 284320.

Court of Appeals of Michigan.

Submitted September 9, 2009, at Lansing.

Decided November 3, 2009, at 9:15 a.m.

Fieger, Fieger, Kenney, Johnson & Giroux, P.C. (by Victor S. Valenti), Southfield, for plaintiff.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, and John P. Mack, Assistant Attorney General, for defendant.

Before: SAAD, C.J., and WHITBECK and ZAHRA, JJ.

PER CURIAM.

In this governmental immunity highway exception case, defendant, the Michigan Department of Transportation (MDOT), appeals as of right the trial court's order denying MDOT summary disposition under MCR 2.116(C)(7). This case arises out of a single-motor-vehicle accident in which plaintiff Jerome Plunkett's wife, decedent Holly Marie Plunkett,¹ died after losing control of her vehicle, causing her vehicle to leave the roadway and strike a tree. We affirm in part and reverse in part.

I. BASIC FACTS AND PROCEDURAL HISTORY

On May 19, 2005, at approximately 8:30 p.m., Holly Plunkett was driving her minivan south on US-127 in Clare County, at or near Bailey Road in Frost Township. The posted speed limit was 70 miles an hour, and data allegedly taken from the vehicle's diagnostic module reflected that Holly Plunkett was traveling 77 miles an hour when she lost control of the vehicle, which then struck a tree on the west side of the highway. At the time and place of the accident, it was raining and the road surface was wet. The injuries Holly Plunkett sustained as a result of the accident caused her immediate death.

In September 2005, Plunkett filed his presuit notice of claim, which alleged that a defect existed on US-127 that led to Holly Plunkett's accident.² Shortly thereafter, Plunkett filed suit in the Court of Claims as personal representative of the estate of Holly Marie Plunkett, specifically invoking the highway exception to governmental immunity³ in an effort to seek damages "as allowed by Michigan's Wrongful Death Statute, MCL 600.2922...." In his third amended complaint, Plunkett alleged that Holly Plunkett "suddenly and unexpectedly lost control of her vehicle due to the dangerous and defective conditions which existed on/at the actual physical structure of the roadbed surface of the highway at issue, causing Mrs. Plunkett's death." More specifically, Plunkett alleged that

as a direct and proximate result of MDOT's failure to maintain the highway at issue in reasonable repair and in a condition reasonably safe and fit for public/vehicular travel, defects in the actual physical of the roadbed sic surface of said highway, designed for vehicular travel, allowed an unnatural accumulation of rainfall to pool/collect.

Plunkett alleged that Holly Plunkett's vehicle "hydroplaned on the defective and dangerous roadway surface, causing loss of control of said vehicle...."

According to Plunkett, the portion of the highway at issue was initially designed and built correctly and "in a condition reasonably safe and fit for vehicular/public travel at all times," but it later fell into disrepair, "which caused the actual physical structure of the roadbed's surface to thereafter contain substantially dangerous and defective conditions...." Plunkett alleged that the

general purpose for the MDOT super-elevation and cross-slope/crown specifications on the actual physical structure of roadbed surface sic of the highway at issue, designed for public/vehicular travel, is to reduce or eliminate wet weather skidding accidents by maintaining zero water depth on the roadbed surface during a normal rainfall.

However, Plunkett alleged, "1999 and/or 2001 micro surfacing projects negligently altered the cross-slope/crown and/or super-elevation of the highway at issue from the proper cross-slope/crown and/or super-elevation of the 1990 construction" because a uniform thickness was not applied and the "cross-slope/crown and/or super-elevation" then became inadequate.

Plunkett alleged that, at the time of the accident, the "actual physical structure of the roadbed's surface ... was ... substantially hazardous and defective, not properly maintained, and/or not in reasonable repair and in a condition reasonably safe and fit for public/vehicular travel" because of "excessive wheel track rutting," "uneven gradient due to excessive wear," "excessive wear," "inadequate cross-slope/crown," and "inadequate super-elevation." Plunkett alleged that these defects in the physical structure of the roadbed surface proximately caused Holly Plunkett's vehicle to "become imbalanced." However, Plunkett also alleged that these defects in the physical structure of the roadbed surface "caused rainfall to unnaturally collect and pool/stand on the roadway's surface in excessive and dangerous amounts when it rained." According to Plunkett, the defects in the physical structure of the roadbed surface, "with the unnaturally pooled water and/or rainfall, proximately caused Holly Plunkett's accident." And he alleged that

at least 30 days prior to and at the time of the accident, the actual physical structure of the roadbed surface of the highway at issue, designed for public/vehicular travel, was substantially defective and hazardous, and not in reasonable repair and in a condition reasonably safe and fit for public/vehicular travel at all times during and after rainfall due to the aforementioned dangerous and defective conditions in the roadbed surface.

Plunkett further alleged that, at least 30 days before and at the time of the accident, MDOT "knew, or after the exercise of due diligence should have known," about the defective conditions, "which needed to be repaired."

In November 2007, MDOT filed its third motion for summary disposition under MCR 2.116(C)(7), arguing that Plunkett had failed to plead a cause of action in avoidance of governmental immunity, that Plunkett had failed to perfect his claim with proper presuit notice, and that the damages recoverable by Plunkett were restricted to those specifically allowed under MCL 691.1402(1). After hearing oral arguments on the motion, the trial court denied the motion, finding that Plunkett's presuit notice sufficiently described the nature of the defect; that Plunkett had properly pleaded in avoidance of governmental immunity by alleging that there was a persistent defect in the highway that, in combination with the falling rain, created an unsafe situation; and that Plunkett was entitled to recover wrongful death act damages for loss of companionship and society. The trial court entered a formal written order in March 2008.

MDOT now appeals as of right the trial court's denial of its motion for summary disposition.⁴

II. MCL 691.1404 PRESUIT NOTICE

A. STANDARD OF REVIEW

MDOT argues that the trial court erred by denying MDOT summary disposition because Plunkett's claim, that an inadequate superelevation or rutting of the highway surface constituted the alleged "defect," is barred because MDOT was not given sufficient presuit notice of that specific condition as required by MCL 691.1404. According to MDOT, the notice did not contain a strictly accurate or correct identification of the alleged highway defect.

We review de novo a trial court's ruling on a motion for summary disposition.⁵ Further, the proper interpretation of a statute is a question of law subject to our de novo review.⁶

B. PLUNKETT'S PRESUIT NOTICE

As stated previously, in September 2005, Plunkett filed his presuit notice of claim, which alleged that a defect existed on US-127 that led to Holly Plunkett's accident. The notice stated, in pertinent part:

Please accept this letter as notice of intention to file a claim against the Michigan Department of Transportation on behalf of our clients in connection with an incident that occurred on May 19, 2005, at approximately 8:30 p.m. on Southbound US-127, at or near Bailey Road, Clare County, Michigan.

The claim arose when Holly Marie Plunkett struck standing/pooled water on the roadway's surface while driving, which then caused her vehicle to hydroplane out of control and strike a tree on the west side of the roadway. The standing/pooled water on the roadway was caused by excessive and uneven wear, and/or lack of drainage due to uneven and unreasonable wear, and/or failure to maintain the roadway in a reasonably safe manner.

A police report regarding Holly Plunkett's accident was attached to the notice. The report stated that "it was raining hard at the time, there was some standing water on the roadway where the vehicle tires travel...." The report suggested that Holly Plunkett lost control of her vehicle "possibly from hydro-planing sic...." A second police report described the location of the accident:

The section of US-127 where the incident occurred has a long curve going from the southwest to the south. Just prior to where the vehicle left the roadway the road straightens out to the south....

* * *

At the scene of the accident there was a guard rail on the east side of the roadway that started approx. 40 yds. prior to the accident scene. The guard rail on the west side of the roadway started adjacent to the point of impact of the incident. There is a bridge that goes over a swamp just south of the scene.

C. APPLICABLE LEGAL PRINCIPLES

To bring a claim under the highway exception to governmental immunity, an injured person must timely notify the governmental agency having jurisdiction over the roadway of the occurrence of the injury, the injury sustained, "the exact location and nature of the defect," and the names of known witnesses.⁷ The notice need not be provided in a particular form. It is sufficient if it is timely and contains the requisite information.⁸

The Michigan Supreme Court has established that "MCL 691.1404 is straightforward, clear, unambiguous, and not constitutionally suspect" and "must be enforced as written."⁹ However, when notice is required of an average...