Streng v. Bd. of Mackinac Cnty. Rd. Comm'rs
| Decision Date | 24 May 2016 |
| Docket Number | Docket No. 323226. |
| Citation | 315 Mich.App. 449,890 N.W.2d 680 |
| Parties | STRENG v. BOARD OF MACKINAC COUNTY ROAD COMMISSIONERS. |
| Court | Court of Appeal of Michigan — District of US |
Kluczynski, Girtz & Vogelzang, Grand Rapids (by Richard Radke, Jr. ) for plaintiff.
Henn Lesperance PLC (by William L. Henn ) for defendant.
Before: SAAD, P.J., and STEPHENS and O'BRIEN, JJ.
Defendant, the Board of Mackinac County Road Commissioners, appeals as of right the trial court order denying defendant's motion for summary disposition, which was premised on governmental immunity and the alleged insufficiency of a notice of intent to sue sent by plaintiff, Karen L. Streng. We affirm.
On July 8, 2011, plaintiff was injured in a motorcycle accident when she lost control of her motorcycle because of extensive patching with a tar-like substance on Highway 33, about a mile north of its intersection with Camp A Road. On September 2, 2011, plaintiff sent a document titled, " MCL 224.21 NOTICE OF INTENT TO PURSUE CLAIM," to the chairperson of defendant and the Mackinac County Clerk. The notice document stated that plaintiff was heading north toward Curtis, Michigan, described the location of the accident as "Highway 33 near the intersection of Camp A Road in Mackinac County, Michigan," and indicated that "Rick and Sue Fowler ... have a vacation home adjacent to the crash site." Attached to the notice was a copy of the police report, which described the location of the accident as being 1,000 feet north of the intersection of Camp A Road and Highway 33 and included a rough sketch of the accident scene.
The police officer who wrote the report contacted defendant's west-district garage foreman and noted in the report, "Road commission was notified of the potential hazard." The foreman met the officer at the scene and was able to identify where the accident had occurred by the skid marks. The foreman noted that the accident occurred at a curve in the road and that the rest of that road did not have a curve like that one. When the officer insisted that something be done about the curve, the foreman called his supervisor, defendant's engineer/manager, and they decided to apply Dura–Patch to accommodate the officer's request. During the week after the accident, the foreman and the engineer/manager (who testified that he is defendant's chief administrative officer, chief executive officer, and point of contact for the public and the township) met at the site to confirm that the application of Dura–Patch had been completed.
Plaintiff filed this action on July 1, 2013. She claimed injury to her shoulder and knee and damage to several teeth. Plaintiff's alleged damages included "medical expenses; wage loss and/or loss of earnings capacity; great mental anguish; fright and shock; pain and suffering; embarrassment; humiliation; loss of mobility and disability; the need for replacement services; and ... the loss of the joys and pleasure and the vitalities of life."
After discovery was closed, defendant moved for summary disposition, arguing that plaintiff's notice of intent failed to identify the exact location of the accident as required by the notice provision of MCL 691.1404(1) and that it could not be held liable for any damages that did not constitute bodily injury or property damage. Defendant provided the affidavit of a road commission employee, who stated he had measured the exact location of the accident and it was 5,647 feet (1.07 miles) north of Camp A Road on Highway 33. There is no dispute that this was, in fact, the precise location of the accident. Plaintiff responded by arguing that MCL 224.21(3) was the applicable notice provision, which requires that the notice only "set forth substantially the time when and place where the injury took place." She asserted that under either statute the notice was sufficient because the police report included a sketch showing the curve of the road, and both defendant's foreman and engineer/manager went to the scene to inspect the road condition and its subsequent repair. From these events, plaintiff argued that defendant had actual notice of the location well before the notice of intent was sent. Plaintiff also countered defendant's attempt to limit her recoverable damages, asserting that her physical injury meant she was entitled to recover whatever tort damages arose therefrom.
In its written opinion, the trial court agreed with plaintiff on all points, holding that "the language contained in [MCL] 224.21 is controlling under these facts," and that the notice would satisfy either statute because the location "was sufficiently stated with the additional circumstances surrounding the events [sic] development." Defendant's argument that the notice was not sufficient, even though defendant had actual notice of the exact location of the accident, involved "form over substance" that the court found without merit. The court also concluded that plaintiff was not precluded from claiming damages beyond bodily injury and property damage, "based on Plaintiff's arguments and the elements of damages listed in [M Civ JI] 50.01 and the Supreme Court's ruling in [Hagerty v. Bd. of Manistee Co. Rd. Comm'rs ], 493 Mich. 933 (2013)." Thus, the trial court denied defendant's motion, and this appeal followed.
As a preliminary matter, we must resolve the conflict as to which notice provision governs this case: MCL 691.1404 under the governmental tort liability act (GTLA), MCL 691.1401 et seq., or MCL 224.21 under the highway code, MCL 220.1 et seq.
The GTLA grants immunity 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. Relevant here is the defective highway exception, MCL 691.1402. See Rowland v. Washtenaw Co. Rd. Comm., 477 Mich. 197, 202–203, 731 N.W.2d 41 (2007) (). At the time of the accident,1 the statute controlling the liability of a governmental agency for defects in highways provided, in relevant part:
Except as otherwise provided in [MCL 691.1402a ], each 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. 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. The liability, procedure, and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21 of chapter IV of 1909 PA 283, MCL 224.21. The duty of the state and the county road commissions to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, trailways, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel. [MCL 691.1402(1) (emphasis added).]
The GTLA also includes the following notice provisions:
MCL 224.21, the statute expressly referred to in MCL 691.1402(1), addresses county roads under the jurisdiction of county road commissions and provides in relevant part:
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