Russell v. City of Detroit

• Decision Date: 10 October 2017
• Docket Number: No. 332934,332934
• Citation: 909 N.W.2d 507,321 Mich.App. 628
• Parties: Lawrence RUSSELL, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

321 Mich.App. 628

909 N.W.2d 507

Lawrence RUSSELL, Plaintiff-Appellee,

v.CITY OF DETROIT, Defendant-Appellant.

No. 332934

Court of Appeals of Michigan.

Submitted October 3, 2017, at Detroit.

Decided October 10, 2017, 9:20 a.m.

Lipton Law (by Marc Lipton and Chris Camper ) for plaintiff.

Sheri L. Whyte for defendant.

Before: Shapiro, P.J., and Hoekstra and M. J. Kelly, JJ.

Per Curiam.

In this action related to an injury arising from a purportedly defective city street, defendant, the city of Detroit (the City) sought summary disposition pursuant to MCR 2.116(C)(7) on the ground that plaintiff, Lawrence Russell, had failed to provide notice in compliance with the government tort liability Act (GTLA), MCL 691.1401 et seq . The trial court denied the City’s motion, and the City now appeals as of right. Because plaintiff provided notice to the City as required by MCL 691.1404(1), we affirm.

According to plaintiff’s complaint, on July 20, 2014, he fractured his leg

after he drove his motorcycle through a pothole, lost control, and then crashed. In October 2014, plaintiff’s attorney sent the City notice of plaintiff’s injury and the defect in the roadway. On March 6, 2015, plaintiff filed his complaint in this case. Thereafter, the City moved for summary disposition, asserting that the complaint should be dismissed because plaintiff had failed to provide notice to the City as required by MCL 691.1404(1). Specifically, the City argued that plaintiff’s notice was deficient for purposes of MCL 691.1401(1) because (1) the notice failed to specify the exact location and exact nature of the defect, and (2) the notice was served by plaintiff’s attorney rather than by plaintiff. The trial court rejected these arguments. The City now appeals as of right.

On appeal, the City argues that the trial court erred by denying its motion for summary disposition under MCR 2.116(C)(7) because plaintiff failed to provide notice as required by MCL 691.1404(1). In particular, as in the trial court, the City argues that plaintiff failed to provide notice of the exact location and nature of the defect. Additionally, the City contends that plaintiff was required to personally serve notice on the City, meaning that service by plaintiff’s attorney was insufficient to comply with MCL 691.1404(1).

I. STANDARDS OF REVIEW

"This Court reviews motions for summary disposition under MCR 2.116(C)(7) de novo." Trentadue v. Buckler Automatic Lawn Sprinkler Co. , 479 Mich. 378, 386, 738 N.W.2d 664 (2007). "Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by immunity granted by law." State Farm Fire & Cas. Co. v. Corby Energy Servs., Inc. , 271 Mich.App. 480, 482, 722 N.W.2d 906 (2006). The applicability of governmental immunity and its statutory exceptions are reviewed de novo. Moraccini v. Sterling Hts. , 296 Mich.App. 387, 391, 822 N.W.2d 799 (2012). "Questions of statutory interpretation are also reviewed de novo." Rowland v. Washtenaw Co. Rd Comm. , 477 Mich. 197, 202, 731 N.W.2d 41 (2007).

II. EXACT LOCATION AND NATURE OF THE DEFECT

The City first argues that the location and nature of the defect were not adequately described in the notice provided by plaintiff. The City contends that plaintiff merely provided the location of an intersection, which encompasses a broad area and was not sufficient to identify the "exact location" where plaintiff’s injury occurred. With regard to the nature of the defect, the City maintains that plaintiff also failed to sufficiently describe the nature of the alleged defect.

Under the GTLA, "governmental agencies are immune from tort liability when engaged in a governmental function." Nawrocki v. Macomb Co. Rd. Comm. , 463 Mich. 143, 156, 615 N.W.2d 702 (2000), See also MCL 691.1407(1). "[T]he immunity conferred upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly construed." Nawrocki , 463 Mich. at 158, 615 N.W.2d 702. One such exception is the highway exception codified at MCL 691.1402(1). Under MCL 691.1402(1) provides that "[e]ach governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel." If a governmental agency fails to do so, "[a] person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency."Id .

However, as a prerequisite to recovering damages under the highway exception, the injured person must serve notice on the governmental agency pursuant to MCL 691.1404(1), which states:

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) 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 is straightforward, clear, unambiguous, and not constitutionally suspect." Rowland , 477 Mich. at 219, 731 N.W.2d 41. Consequently, the statute "must be enforced as written." Id. "Failure to provide adequate notice under this statute is fatal to a plaintiff’s claim against a government agency." McLean v. Dearborn , 302 Mich.App. 68, 74, 836 N.W.2d 916 (2013).

Under the plain language of MCL 691.1404(1), "a claimant must provide, within 120 days from the time of injury, notice to the governmental agency that (1) specifies the exact location and nature of the defect, (2) identifies the injuries sustained, and (3) provides the names of any known witnesses." Burise v. Pontiac , 282 Mich.App. 646, 653, 766 N.W.2d 311 (2009). "The notice need not be provided in a particular form. It is sufficient if it is timely and contains the requisite information." Plunkett v. Dep’t of Transp. , 286 Mich.App. 168, 176, 779 N.W.2d 263 (2009). Further, the information provided in the notice "need only be understandable and sufficient to bring the important facts to the governmental entity’s attention." Id. The sufficiency of the notice is judged on the entire notice and all the facts stated therein. Rule v. Bay City , 12 Mich.App. 503, 508, 163 N.W.2d 254 (1968). "Some degree of ambiguity in an aspect of a particular notice may be remedied by the clarity of other aspects." McLean , 302 Mich.App. at 75, 836 N.W.2d 916 (citation and quotation marks omitted).

Nevertheless, the injured person must give notice of "the exact location;" and the provision of incorrect information, such as an incorrect address, will not be excused if the error is not corrected within the notice period. Jakupovic v. City of Hamtramck , 489 Mich. 939 (2011) ; Thurman v. Pontiac , 295 Mich.App. 381, 385–386, 819 N.W.2d 90 (2012). Absent clarifying information, a description may also be considered too vague or imprecise to give notice of the "exact location." For example, a description was deficient when it referred to a defective sidewalk at an intersection without specifying on which of the four corners of the intersection the alleged defect was located. Thurman , 295 Mich.App. at 385–386, 819 N.W.2d 90, discussing Dempsey v. Detroit , 4 Mich.App. 150, 151-152; 144 N.W.2d 684 (1966). Likewise, a description of a defect "near" an address, which failed to specify that the defect was actually 40 yards away on the south side of the road, was insufficient to identify the place of injury. Thurman , 295 Mich.App. at 385, 819 N.W.2d 90, discussing Smith v. City of Warren , 11 Mich.App. 449, 452-453; 161 N.W.2d 412 (1968).

In this case, the notice that plaintiff’s counsel sent to the City contained the following information regarding the location and the nature of the defect:

Location of Defect: Intersection of Selden St. and Aretha Street, Detroit Michigan. See attached photos.

Nature of the Defect: A large pothole, adjacent to a manhole cover in the middle of the street.

By reading the section labeled "Location of Defect" in isolation, the City contends that, as in Smith and Dempsey , plaintiff’s description of the location is insufficient because it refers generally to an intersection without the details necessary to locate the defect. However, in considering the notice, we consider all the facts stated therein and construe the location in connection with the description of the defect. See Rule , 12 Mich.App. at 508, 163 N.W.2d 254. In other words, unlike the City, we will not read plaintiff’s description of the "Location of Defect" without also considering plaintiff’s description of the "Nature of the Defect." See McLean , 302 Mich.App. at 75, 836 N.W.2d 916 ; Plunkett , 286 Mich.App. at 176-177. 779 N.W.2d 263.

When these sections of plaintiff’s notice are read together, it is clear that plaintiff’s identification of the location was sufficient. Plaintiff did not just refer to an intersection. Instead, after identifying a particular intersection in Detroit, plaintiff then more specifically directed the City’s attention to "a manhole cover in the middle of the street," adjacent to which was a "large pothole." The directions to the "middle of the street" and the use of the manhole cover as a landmark, when coupled with the identification of the intersection, were sufficient to enable the City to find the location of the pothole in question from the notice provided.¹ Stated differently, reading the notice as a whole, plaintiff’s notice regarding the location of the defect was "understandable and sufficient to bring the important facts to the governmental entity’s attention." Plunkett , 286 Mich.App. at 176, 779 N.W.2d 263. Therefore, plaintiff’s description of the exact location satisfied MCL 691.1404(1).

With regard to the nature of...