Smith v. City of Warren

• Decision Date: 28 May 1968
• Docket Number: No. 2,Docket No. 2071,2
• Citation: 161 N.W.2d 412,11 Mich. App. 449
• Parties: Julie K. Ortwein SMITH, Plaintiff-Appellant, v. CITY OF WARREN, a municipal corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 412

161 N.W.2d 412

11 Mich.App. 449

Julie K. Ortwein SMITH, Plaintiff-Appellant, v.CITY OF WARREN, a municipal corporation, Defendant-Appellee.

Docket No. 2071.

Court of Appeals of Michigan, Division No. 2.

May 28, 1968.

Released for Publication Oct. 15, 1968.

Kenneth C. Davies, Detroit, for appellant.

Stanley S. Schwartz, Detroit, for appellee.

Before GILLIS, P.J., and T. G. KAVANAGH and WEIPERT, ^* JJ.

WEIPERT, Judge.

Plaintiff brought an action against the city of Warren in the Macomb county circuit court, for injuries sustained due to failure by the city to maintain a safe road.Plaintiff was involved in an automobile accident on January 21, 1965.Notice of her claim was served on defendant city on March 19, 1965, and action commenced on November 29, 1965.Thereafter defendant moved for summary judgment, claiming the statutory notice to be defective.Plaintiff appeals from the order of the circuit court granting defendant's motion.

The sufficiency of plaintiff's written notice to defendant city is the sole issue before us.The statute then in effect ¹ required that such notice, to be given within 60 days from the happening of the injury,

'specify the exact location and nature of the defect, the injury sustained, and the names of the witnesses known at the time by claimant.'

The notice served by plaintiff on the city read as follows:

'Please be advised that we are the attorneys representing Julie K. Ortwein and hereby give notice to you of a pending claim on her behalf.

'Physical, mental and property injuries and damages were sustained as a result of an automobile accident on January 21, 1965 at Thirteen Mile Road and Hoover, near the address of 11480 Thirteen Mile Road.

'We consider the city of Warren to be responsible under the general highway law and ordinances for the defective and faulty road condition that caused this accident.As a result thereof losses were sustained by our client and other parties.'

It will be immediately observed that the notice given does not purport to specify the 'nature of the defect', as required by the statute.Plaintiff's later pleadings claim the cause of the accident to be a large depression in the road and the north shoulder of Thirteen Mile Road.Negligence of the city was predicated on failure to maintain the road to avoid the existence of such a depression, and on failure to post a warning sign giving notice of a narrowing of the road.But the notice only speaks in generalities of a 'defective and faulty road condition', which could mean anything.

Nor does the notice specify 'the injury sustained, and the names of the witnesses known at the time by claimant'.Plaintiff's later pleadings claim injuries on her face and body by way of lacerations, among other things.Such lacerations certainly were immediately apparent; no possible excuse appears for not specifying them in a notice given almost 60 days after the accident and after plaintiff's lengthy hospitalization.The same is true of the failure to comply with the statutory mandate as to witnesses, there being in fact a passenger in plaintiff's vehicle.

As to 3 of the 4 required contents of the statutory notice, then, the notice given by plaintiff could hardly be more defective.Those requirements were totally ignored.It remains to be considered whether plaintiff complied with the first requirement, that of specifying the location of the defect.

In fact the accident occurred on Thirteen Mile Road, west of its intersection with Hoover Road, the alleged road defect being on the north side and shoulder of Thirteen Mile Road.The notice refers only to 'Thirteen Mile and Hoover, near the address of 11480 Thirteen Mile Road.'That address was indeed the nearest landmark, but it was located on the South side of Thirteen Mile Road, and some 40 yards away.The notice gave neither distance nor direction from the stated address, nor the fact that the claimed defect was on the other side of the road.It fails to specify which of the four corners of the named intersection are involved.The direction in which plaintiff was travelling being unknown, it is obviously impossible to tell from this meager description where to begin looking, or to what claims plaintiff could be limited in subsequent litigation.

Of the great number of cases cited in the voluminous briefs it suffices to refer to a few, which in our opinion sufficiently elucidate the principle involved.In the recent case of Dempsey v. City of Detroit(1966), 4 Mich.App. 150, 144 N.W.2d 684, this Court held that a notice which identified an alleged defect as being at a given intersection was fatally deficient because it failed to indicate at which of the four corners of the intersection the alleged defect was located.The rationale of two leading Michigan cases, Barribeau and Overtoninfra, was expressly approved.

In Barribeau v. City of Detroit(1907), 147 Mich. 119, 125, 126, 110 N.W. 512, 514, the Supreme Court stated:

'The requirement that a notice be given is not alone for the purpose of affording the officers of the city opportunity for investigation.It is also for the purpose of confining the plaintiff to a particular 'venue' of the injury.In determining the sufficiency of the notice, excepting perhaps as to the time of the injury, the whole notice and all of the facts stated therein may be used and be considered to determine whether it reasonably apprises the officer upon whom it is required to...