Reich v. State Highway Dept.

• Decision Date: 25 February 1972
• Docket Number: No. 25,25
• Citation: 194 N.W.2d 700,386 Mich. 617
• Parties: Patricia REICH and Leo Reich, Plaintiffs-Appellants, v. STATE HIGHWAY DEPARTMENT, Defendant-Appellee. John KNAPP et al., Plaintiffs-Appellants, v. STATE HIGHWAY DEPARTMENT, Defendant-Appellee. Ralph G. BAKER and Cynthia A. Baker, Plaintiffs-Appellants, v. STATE HIGHWAY DEPARTMENT, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 700

194 N.W.2d 700

386 Mich. 617

Patricia REICH and Leo Reich, Plaintiffs-Appellants, v. STATE HIGHWAY DEPARTMENT, Defendant-Appellee.

John KNAPP et al., Plaintiffs-Appellants, v. STATE HIGHWAY DEPARTMENT, Defendant-Appellee.

Ralph G. BAKER and Cynthia A. Baker, Plaintiffs-Appellants, v. STATE HIGHWAY DEPARTMENT, Defendant-Appellee.

No. 25.

Supreme Court of Michigan.

Feb. 25, 1972.

Wisti & Jaaskelainen, by Don R. Hiltunen, Hancock, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Louis J. Caruso, Myron A. McMillan, Asst. Atty. Gen., Lansing, for defendant-appellee State of Michigan.

Before the Entire Bench.

ADAMS, Justice.

I. Facts and Proceedings

These cases challenge the constitutionality of the notice requirement of P.A.1964, No. 170.

1. Reich v. State Highway Department

On October 10, 1966, on Highway US--45 in Ontonagon County, Patricia Reich suffered a whiplash injury when the car she was driving swerved out of control and collided with a tree. Claims on behalf of herself and her husband were filed December 12, 1966--63 days after the accident.

2. Knapp v. State Highway Department

On August 22, 1966, on Highway US--45 in Ontonagon County, Maxine Knapp and her three children (all under seven years of age) were injured when her car went out of control and overturned a number of times. Claims on behalf of the Knapps and their children were filed November 18, 1966--88 days after the accident.

3. Baker v. State Highway Department

On October 9, 1966, on Highway US--45 in Ontonagon County, Cynthia Baker and her five year old son were injured when her car went out of control, rolled over, and collided with a tree and a boulder. Claims on behalf of the Bakers and their son were filed December 12, 1966--64 days after the accident.

The three cases were consolidated. The Court of Claims granted motions for accelerated judgments because of plaintiffs' failure to comply with the notice requirement of P.A.1964, No. 170. On appeal to the Court of Appeals, that Court affirmed the lower court's decision. (17 Mich.App. 619, 170 N.W.2d 267). We granted a delayed application for leave to appeal. (384 Mich. 786).

II. Does the 60-day notice provision

violate due process as applied to minors?

The issue of the accrual of a vested right under a remedial statute was decided in Minty v. Board of State Auditors (1953), 336 Mich. 370, 58 N.W.2d 106, where it was held that the State's waiver of sovereign immunity from liability of the State created a cause of action, and that a remedy for the same could not thereafter be denied.

In Kowalczyk v. Bailey (1967), 379 Mich. 568, 153 N.W.2d 660, this Court held that C.L.1948, § 242.8 (Stat.Ann.1958 Rev. § 9.598) ¹ created a liability upon cities for injuries caused by their negligent failure to remove obstructions in their streets after notice thereof.

In Grubaugh v. City of St. Johns (1970), 384 Mich. 165, 180 N.W.2d 778, a 19-year old plaintiff was severely injured in an automobile accident, allegedly caused by a chuckhole in a street. Defendant city moved to dismiss Grubaugh's complaint on the ground that plaintiff had failed to serve written notice of claim within 60 days, as required by C.L.1948, § 242.8. Plaintiff answered that because of his injuries, he was incapacitated from giving notice within the required time limit. Justice T. M. Kavanagh, who was joined in his opinion by Justices Black and T. G. Kavanagh, and concurred with by Justices Dethmers and Adams, wrote:

'The primary issue raised below and saved for appeal in this cause is whether the 60-day notice requirement of § 8 of chapter 22 of the general highway statute is constitutionally infirm when applied to a plaintiff rendered mentally or physically incapacitated by the alleged tortious act of a state or municipal defendant giving rise to the asserted cause of action. (p. 167, 180 N.W.2d p. 779)

'* * * we reject and overrule the reasoning under the rule in Moulter, supra,* and condemn the purely capricious and arbitrary exercise of legislative power whereby a wrongful and highly injurious invasion of rights is sanctioned and the litigant who fails to submit the required notice of claim is stripped of all real remedy. (p. 176, 180 N.W.2d p. 784) *(Moulter v. Grand Rapids (1908), 155 Mich. 165, 118 N.W. 919)

'Since we dispose of this case on the basis of this plaintiff's right to due process, we do not discuss the briefed argument that the 60-day notice requirement in every case violates the equal protection clauses of the state and Federal Constitutions. Such question will undoubtedly arise in some new case where a fully competent adult is the victim.' (pp. 176--177, 180 N.W.2d p. 784)

The disabilities of minors, particularly of infants, have long been recognized and protected by the law. As to the minors in these cases, we adopt the reasoning of Justice Kavanagh in Grubaugh. ² The 60-day notice provision of the statute is constitutionally infirm as to minors.

III. Does the 60-day notice provision violate equal protection?

This Court discussed at length the principles governing equal protection questions in the case of Fox v. Michigan Employment Security Commission (1967), 379 Mich. 579, 588--589, 153 N.W.2d 644. See, also, Tomlinson v. Tomlinson (1953), 338 Mich. 274, 278, 61 N.W.2d 102.

The object of the legislation under consideration is to waive the immunity of governmental units and agencies from liability for injuries caused by their negligent conduct, thus putting them on an equal footing with private tort-feasors. However, the notice provisions of the statute arbitrarily split the natural class, i.e., all tort-feasors, into two differently treated subclasses: private tort-feasors to whom no notice of claim is owed and governmental tort-feasors to whom notice is owed.

This diverse treatment of members of a class along the lines of governmental or private tort-feasors bears no reasonable relationship under today's circumstances to the recognized purpose of the act. It constitutes an arbitrary and unreasonable variance in the treatment of both portions of one natural class and is, therefore, barred by the constitutional guarantees of equal protection.

Just as the notice requirement by its operation divides the natural class of negligent tort-feasors, so too the natural class of victims of negligent conduct is also arbitrarily split into two subclasses: victims of governmental negligence who must meet the requirement, and victims of private negligence who are subject to no such requirement. Contrary to the legislature's intention to place victims of negligent conduct on equal footing, the notice requirement acts as a special statute of limitations which arbitrarily bars the actions of the victims of governmental negligence after only 60 days. The victims of private negligence are granted three years in which to bring their actions. See M.C.L.A. § 600.5805 (Stat.Ann.1962 Rev. § 27A.5805). Such arbitrary treatment clearly violates the equal protection guarantees of our State and Federal Constitutions. The notice provision is void and of no effect. ³

The Court of Appeals is reversed and the causes are remanded to the Court of Claims for trial. Plaintiffs shall have costs.

T. M. KAVANAGH, C.J., and BLACK, T. G. KAVANAGH, SWAINSON and WILLIAMS, JJ., concur.

BLACK, Justice (concurring specially).

In Morgan v. McDermott, 382 Mich. 333, 356, 169 N.W.2d 897, 904, Justice Adams wrote succinctly for our 1969 majority:

'The condition of liability is compliance with the 60-day notice requirement. Until it has been fulfilled, there is no liability.'

His opinion for that majority concludes flatly (p. 360, 169 N.W.2d p. 907):

'The 60-day notice requirement is a condition 'to any liability * * * for damages sustained by any person * * * either to his person or property, by reason of any defective county road, bridge or culvert."

Now my Brother, irnoring his opinion of Morgan, writes for today's majority (ante at 702):

'Contrary to the legislature's intention to place victims of negligent conduct on equal footing, the notice requirement acts as a special statute of limitations which arbitrarily bars the actions of the victims of governmental negligence after only 60 days.'

I suggest with utmost deference that Morgan's error should be acknowledged manfully and then publicly buried. Does not the Court owe such a duty to Michigan's trial bench and Bar?

In Morgan Justice Dethmers and I, dissenting, concluded as the Court now does for these cases of Reich et al., namely, that our there considered 60-day notice statute (M.C.L.A. § 224.21), 'providing liability as well as right of suit, sets forth a short--very short--time limitation against the liability Which occrues when the duty imposed thereby is breached.' (p. 378, 169 N.W.2d p. 915). Reiterating this for direct application to the instant cases, I concur in the result ordered by our current majority.

BRENNAN, Justice (dissenting).

I decline to join with my Brothers in this enlargement of the constitutional concept of equal protection of the laws.

My Brother has written that the statutory requirement of notice contained in 1964 P.A. No. 170, as amended, being M.C.L.A. § 691.1401 et seq., which is contained in...