Rowland v. Washtenaw County Road Com'n, Docket No. 130379.

CourtSupreme Court of Michigan
Citation477 Mich. 197,731 N.W.2d 41
Docket NumberDocket No. 130379.,Calendar No. 13.
PartiesJoanne ROWLAND, also known as Joan Rowland, Plaintiff-Appellee, v. WASHTENAW COUNTY ROAD COMMISSION, Defendant-Appellant.
Decision Date02 May 2007
731 N.W.2d 41
477 Mich. 197
Joanne ROWLAND, also known as Joan Rowland, Plaintiff-Appellee,
Docket No. 130379.
Calendar No. 13.
Supreme Court of Michigan.
Argued October 4, 2006.
Decided May 2, 2007.

[731 N.W.2d 44]

Thomas, Garvey, Garvey & Sciotti, P.C. (by James McKenna), St. Clair Shores, for the plaintiff.

Fordney, Prine & Coffey (by Andrew W. Prine, P.C.) and Smith Haughey Rice & Roegge (by Jon D. Vander Ploeg and William L. Henn), Saginaw, Grand Rapids, for the defendant.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Patrick F. Isom, Assistant Attorney General, Lansing for amici curiae the state of Michigan.

Hicks, Mullett & Gregg, P.L.L.C. (by Liisa R. Speaker), Lansing, for amici curiae Michigan Trial Lawyers Association.

Plunkett & Cooney, P.C. (by Mary Massaron Ross), Detroit, for amici curiae Michigan Municipal League, Michigan Municipal League Liability & Property Pool, and Michigan Townships Association.

Johnson, Rosati, LaBarge, Aseltyne & Field, P.C. (by Marcelyn A. Stepanski), Farmington Hills, for amici curiae Michigan Municipal Risk Management Authority.


The issue in this case is whether a notice provision applicable to the defective highway exception to governmental immunity, MCL 691.1404(1), should be enforced as written. This statute 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, . . . shall serve a notice on the 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.

We conclude that the plain language of this statute should be enforced as written: notice of the injuries sustained and of the highway defect must be served on the governmental agency within 120 days of the injury. This Court previously held in Hobbs v. Dep't of State Hwys., 398 Mich. 90, 96, 247 N.W.2d 754 (1976), and Brown v. Manistee Co. Rd. Comm., 452 Mich. 354, 356-357, 550 N.W.2d 215 (1996), that absent a showing of actual prejudice to the governmental agency, failure to comply with the notice provision is not a bar to claims filed pursuant to the defective highway exception. Those cases are overruled.

Accordingly, the order of the trial court denying summary disposition to defendant on the basis of Hobbs/Brown is reversed, the judgment of the Court of Appeals affirming the trial court's order is also reversed, and the case is remanded to the trial court for the entry of an order granting defendant summary disposition because plaintiff failed to provide notice within 120 days "[a]s a condition to any recovery" for injuries she claims she sustained by reason of a defective highway.


On February 6, 2001, plaintiff Joan Rowland fell and was injured while crossing Jennings Street at its intersection with Main Street in Northfield Township in Washtenaw County. Plaintiff alleged that she tripped and fell on "broken, uneven,

731 N.W.2d 45

dilapidated, depressed and/or potholed areas."

Plaintiff served her notice on defendant Washtenaw County Road Commission on the 140th day after the accident and subsequently filed a lawsuit against defendant asserting the applicability of the defective highway exception to governmental immunity. MCL 691.1402. Defendant road commission filed an answer and affirmative defenses that raised MCL 691.1404 (failure to serve notice within 120 days) as a defense. Defendant subsequently moved for summary disposition pursuant to MCR 2.116(C)(7) (immunity granted by law) and 2.116(C)(10) (no genuine issue of material fact), arguing, among other things, that plaintiff's failure to comply with MCL 691.1404(1) entitled it to summary disposition.

Relying on Hobbs/Brown (defendant must show prejudice before the statute can be enforced) the trial court determined that there was a genuine issue of material fact concerning whether defendant had shown prejudice and thus denied the road commission's motion for summary disposition.

The Court of Appeals affirmed the order of the trial court.1 Defendant urged the panel to disregard the Hobbs and Brown construction of MCL 691.1404 on the basis that those cases were wrongly decided. The Court of Appeals, however, noted that it was duty-bound to follow this Court's construction of MCL 691.1404 and that the decisions were binding unless the Supreme Court overruled them.

The road commission filed an application for leave to appeal, which this Court granted.2


This Court reviews de novo a trial court's decision to deny a motion for summary disposition. Nastal v. Henderson & Assoc. Investigations, Inc., 471 Mich. 712, 720, 691 N.W.2d 1 (2005). Questions of statutory interpretation are also reviewed de novo. Id. When construing a statute, this Court's primary goal is to give effect to the intent of the Legislature. We begin by construing the language of the statute itself. When the language is unambiguous, we give the words their plain meaning and apply the statute as written. In re MCI Telecom. Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999).


It is well understood, and not challenged here, that governmental agencies, with a few exceptions, are generally statutorily immune from tort liability. The governmental tort liability act (GTLA), MCL 691.1401 et seq., broadly shields a governmental agency from tort liability "if the governmental agency is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1). The act enumerates several exceptions to governmental immunity that permit a plaintiff to pursue a claim against a governmental agency.3 Our decision in this case requires

731 N.W.2d 46

us to examine MCL 691.1404. As previously indicated, the statute provides:

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 otherwise provided in subsection (3)4 shall serve a notice on the 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. [MCL 691.1404(1).]

Plaintiff, having served her notice 140 days after her fall, acknowledges that she did not serve a notice on the road commission within 120 days of her accident. Given that the plain language of the statute requires such notice as a condition for recovery for injuries sustained because of a defective highway, one merely reading the statute might assume that plaintiff's complaint would have been dismissed. Because this Court's decisions in Hobbs and Brown engrafted an actual prejudice component onto the statute, the trial court could not dismiss the case.5 It is valuable in considering the defensibility of this interpretation of the statute to first survey

731 N.W.2d 47

this Court's cases concerning notice provisions, including the provision at issue here.


From its earliest years this Court, evidently detecting no constitutional impediments, if indeed any were even urged, enforced governmental immunity mandatory notice provisions according to their plain language. See, e.g., Davidson v. City of Muskegon, 111 Mich. 454, 69 N.W. 670 (1897); Holtham v. Detroit, 136 Mich. 17, 98 N.W. 754 (1904); Wilton v. Detroit, 138 Mich. 67, 100 N.W. 1020 (1904); Barribeau v. Detroit, 147 Mich. 119, 110 N.W. 512 (1907); McAuliff v. Detroit, 150 Mich. 346, 113 N.W. 1112 (1907); Ridgeway v. Escanaba, 154 Mich. 68, 117 N.W. 550 (1908); Moulter v. Grand Rapids, 155 Mich. 165, 118 N.W. 919 (1908); Northrup v. City of Jackson, 273 Mich. 20, 262 N.W. 641 (1935); Sykes v. Battle Creek, 288 Mich. 660, 286 N.W. 117 (1939); Trbovich v. Detroit, 378 Mich. 79, 142 N.W.2d 696 (1966); Morgan v. McDermott, 382 Mich. 333, 169 N.W.2d 897 (1969).

The leading cases upholding notice provisions are Moulter, Trbovich, and Morgan. In Moulter, this Court held that the right to recover for injuries arising from the lack of repair to sidewalks, streets, highways, and so forth, was purely statutory and that it was discretionary with the Legislature whether it would confer upon injured persons a right of action. Moreover, any rights given to sue the government could be subject to limitations the Legislature chose. The implicit theory was that such notice provisions were economic or social legislation and that, because the Legislature had a rational basis for the notice requirements—the most obvious being facilitating meaningful investigations regarding the conditions at the time of injury and allowing for quick repair so as to preclude other accidents—the statutes were constitutionally permissible. Further, in Trbovich the Court indicated that for the Court to not accede to the Legislature's authority in this fashion would be to unconstitutionally usurp legislative authority. Finally, in Morgan the Court reaffirmed that the then 60-day notice requirement in defective highway cases was simply a condition of liability and that, unless it was fulfilled, there was no liability.6

As of 1969, therefore, the enforceability of notice requirements and the particular notice requirements in governmental immunity cases was well settled and had been enforced for almost a century. In 1970, however, there was an abrupt departure from these holdings in the Court's decision in Grubaugh v. City of St. Johns, 384 Mich. 165, 180 N.W.2d 778 (1970). In Grubaugh the Court discerned an unconstitutional due process deprivation if plaintiffs suing governmental...

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