Ward v. Mich. State Univ., Docket No. 281087.

• Decision Date: 07 January 2010
• Docket Number: Docket No. 281087.
• Citation: 782 N.W.2d 514,287 Mich.App. 76
• Parties: WARDv.MICHIGAN STATE UNIVERSITY (ON REMAND).
• Court: Court of Appeal of Michigan — District of US

287 Mich.App. 76

782 N.W.2d 514

WARDv.MICHIGAN STATE UNIVERSITY (ON REMAND).

Docket No. 281087.

Court of Appeals of Michigan.

Submitted Nov. 23, 2009, at Lansing.

Decided Jan. 7, 2010, at 9:00 a.m.

Church, Kritselis & Wybel, P.C. (by James T. Heos), for plaintiffs.

Michael J. Kiley for defendant.

Before: OWENS, P.J., and SAWYER and MARKEY, JJ.

ON REMAND

PER CURIAM.

This case comes before the Court on remand for reconsideration after our Supreme Court vacated our previous opinion. See Ward v. Michigan State Univ, unpublished opinion per curiam of the Court of Appeals issued January 27, 2009 (Docket No. 281087) 2009 WL 187567, vacated and remanded 485 Mich. 917, 773 N.W.2d 666 (2009). Defendant appeals by right the Court of Claims denial of its motion for summary disposition under MCR 2.116(C)(7) and (8) with regard to plaintiffs' claims under the public building exception to governmental immunity. Plaintiffs cross-appeal challenging the Court of Claims grant of summary disposition to defendant as to plaintiffs' claims under the proprietary function exception to governmental immunity. On reconsideration, we again affirm the Court of Claims grant of summary disposition to defendant regarding plaintiffs' claim in avoidance of governmental immunity under the proprietary function exception. But we reverse the trial court's denial of summary disposition to defendant regarding plaintiffs' claim under the public building exception.

In our prior opinion reversing the Court of Claims denial of summary disposition to defendant regarding plaintiffs' claim under the public building exception, we relied in part on Chambers v. Wayne Co. Airport Auth., 482 Mich. 1136, 758 N.W.2d 302 (2008) ( Chambers II ). That case reversed this Court's unpublished opinion per curiam, issued June 5, 2008 (Docket No. 277900) ( Chambers I ), for the reasons stated in Judge Murray's dissent. We reasoned in our prior opinion that because a peremptory order of our Supreme Court is binding precedent in this Court if it can be understood Evans & Luptak, PLC v. Lizza, 251 Mich.App. 187, 196, 650 N.W.2d 364 (2002), we were bound by our Supreme Court's adoption of the dissent in this Court in Chambers I because it constituted binding precedent. However, on reconsideration, our Supreme Court subsequently vacated its order in Chambers II and denied the defendant's application for leave to appeal this Court's decision in Chambers I. Chambers v. Wayne Co. Airport Auth., 483 Mich. 1081, 765 N.W.2d 890 (2009) ( Chambers III ). The net result of Chambers III was to negate the precedential effect of Chambers II and the dissenting opinion in Chambers I. Of course, the majority opinion in Chambers I also lacks precedential effect. MCR 7.215(C)(1).

Plaintiffs allege that on March 12, 2004, while attending a college hockey game at defendant's ice arena, a hockey puck struck and injured the principal plaintiff, Carla Ward. Plaintiffs contend that a defect, specifically the lack of Plexiglass protecting one section of spectators from the ice rink in defendant's building, caused the incident. One of defendant's employees apparently assisted plaintiff after she was injured and until an ambulance arrived to transport plaintiff for medical treatment. Critically, plaintiffs never served defendant with a notice of claim or information required by MCL 691.1406. Rather, plaintiffs' counsel on December 30, 2004, mailed a letter addressed to “Sir/Madam” at “MSU Munn Ice Arena, East Lansing, MI, 48823.” In this letter, counsel advised that he represented the principal plaintiff “in the matter of personal injuries she sustained as a result of an automobile accident” on March 12, 2004. Plaintiffs' counsel mailed a second and similar letter on January 21, 2005. Both letters suggested that the matter be referred to defendant's insurance carrier and that counsel be contacted directly if defendant lacked insurance. The letters did not indicate the specific cause or nature of the injury, the exact location and nature of any defect in the ice arena, or provide the names of any witnesses to the incident known to plaintiffs.

We review de novo both a trial court's grant or denial of a motion for summary disposition and questions of statutory interpretation. Liptow v. State Farm Mut. Auto. Ins. Co., 272 Mich.App. 544, 549, 726 N.W.2d 442 (2006). When the language of a statute is unambiguous, we must assign the words the Legislature uses their plain meaning and apply the statute as written. Rowland v. Washtenaw Co. Rd. Comm., 477 Mich. 197, 202, 731 N.W.2d 41 (2007).

Defendant argues that the Court of Claims erred by failing to grant its motion for summary disposition because plaintiffs failed to serve defendant notice of the occurrence of the incident as required by MCL 691.1406 as a precondition to bringing suit under the public building exception to governmental immunity. We must agree.

MCL 691.1406 provides, in pertinent part:

Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place. As a condition to any recovery for injuries sustained by reason of any dangerous or defective public building, the injured person, within 120 days from the time the injury occurred, shall serve a notice on the responsible 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.

The notice may be served upon any individual, either personally, or by certified mail, return receipt requested, who may lawfully be served with civil process directed

against the responsible governmental agency, anything to the contrary in the charter of any municipal corporation notwithstanding.... Notice to the state of Michigan shall be given as provided in section 4.^[[^1] [ MCL 691.1406 (emphasis added).]

We conclude that MCL 691.1406 is clear and unambiguous. And we must enforce its plain language as written. Rowland, supra at 200, 202, 731 N.W.2d 41. First, the emphasized language above unambiguously requires compliance with the statute's notice requirements as a precondition to “any recovery for injuries sustained by reason of any dangerous or defective public building....” Second, the statute plainly sets forth elements required for a compliant notice. The statute specifies who must serve the notice (“the injured person”), on whom the notice must be served (“any individual ... who may lawfully be served with civil process directed against the responsible governmental agency”), what information the notice must contain (“the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant”), and the manner in which the notice must be served (“either personally, or by certified mail, return receipt requested”). Although the statute does not explicitly provide, it patently implies that these elements of the required notice be in writing. Here, plaintiffs failed to serve a notice compliant with the statute on defendant. Not only were the letters apparently not mailed certified, return receipt requested, they were not mailed to individuals who could accept civil process for defendant, did not contain the information required by the statute, and were not timely. Accordingly, the plain language of MCL 691.1406 requires dismissal of plaintiffs' claims for injuries allegedly sustained by reason of an alleged defect in defendant's ice arena.

Plaintiffs' arguments to the contrary are unavailing. Citing Brown v. Manistee Co. Rd. Comm., 452 Mich. 354, 550 N.W.2d 215 (1996), plaintiffs argue (1) they substantially complied with the notice requirement of MCL 691.1406, and (2) summary disposition is improper because defendant failed to establish it was prejudiced. Brown, supra at 365-366, 550 N.W.2d 215, reaffirmed the rule of Hobbs v. State Hwy Dep't, 398 Mich. 90, 247 N.W.2d 754 (1976), which required a showing of prejudice before a failure to comply with a notice provision would bar a claim against the government. Both Brown and Hobbs have been overruled. Rowland, supra at 200, 223, 731 N.W.2d 41. Further, there is nothing in the wording of MCL 691.1406 that requires the government to show prejudice before the statute may be enforced. Reading a prejudice requirement into the statute would be contrary to settled principles of statutory construction in general and the construction of exceptions to government immunity in particular. “ ‘[A] court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.’ ” Liptow, supra at 554, 726 N.W.2d 442, quoting Roberts v. Mecosta Co. Gen. Hosp., 466 Mich. 57, 63, 642 N.W.2d 663 (2002). Moreover, exceptions to governmental immunity are to be narrowly construed. Maskery v. Univ. of Michigan Bd. of Regents, 468 Mich. 609, 614, 664 N.W.2d 165 (2003).

The record does not support plaintiffs' argument that they substantially complied with the statute. As noted above, plaintiffs completely failed to comply with the notice requirement of the statute. The letters that plaintiffs' counsel mailed were not sent to a particular individual...