Darlene Powell v. City of Detroit
332267
| Mich. Ct. App. | Aug 8, 2017Background
- Plaintiff fell on a Detroit sidewalk in March 2015, fracturing her leg and requiring surgery; Constance Holley witnessed the fall.
- Within 120 days plaintiff’s lawyer mailed a certified notice of injury and defect to the “City of Detroit Law Department,” with a handwritten "Cc: City Clerk, City of Detroit." The return receipt was signed by a Novitex mailroom employee.
- Plaintiff filed a negligence suit under the GTLA asserting the highway exception (MCL 691.1402a) and relying on her served notice (MCL 691.1404).
- Defendant moved for summary disposition arguing plaintiff failed to serve notice on a person authorized to accept service (MCR 2.105(G)(2) — mayor, city clerk, or city attorney), and also raised additional notice-defect arguments.
- The trial court denied defendant’s motion, finding substantial compliance and that the notice ultimately reached defendant’s claims department.
- The Court of Appeals reversed, holding plaintiff did not meet the strict service requirement of MCL 691.1404(2) as interpreted with MCR 2.105(G)(2) and McLean v Dearborn, so the highway exception was unavailable and defendant retained governmental immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was notice under MCL 691.1404(2) properly served on an individual authorized to accept service for the city? | Plaintiff contended the notice (addressed to the Law Department, cc: City Clerk) substantially complied and reached the city via its mail/claims process. | The city argued service must be on one of the persons listed in MCR 2.105(G)(2) (mayor, city clerk, or city attorney) or on someone authorized in writing; mailing to the Law Department is insufficient. | Held for defendant: service to the Law Department was not proper; plaintiff failed to show the return recipient was authorized to accept service. |
| Can a cc notation or eventual receipt by a claims department supply the required service? | Plaintiff argued the cc and forwarding to claims cured any technical defects and there was no prejudice. | Defendant argued actual service on an authorized individual is required; forwarding does not satisfy the statute. | Held for defendant: forwarding/cc did not satisfy the statutory requirement; strict compliance required as interpreted in McLean. |
| Who bears burden of proving authorization to accept service? | Plaintiff suggested defendant had not disproved authorization of the mailroom signee. | Defendant maintained plaintiff bore the burden to prove proper service/authorization. | Held for defendant: plaintiff has the burden to prove service on an authorized person; she did not meet that burden. |
Key Cases Cited
- McLean v. Dearborn, 302 Mich. App. 68 (discusses requirement that notice be served on persons authorized to accept service under MCL 691.1404(2) and MCR 2.105(G))
- Fairley v. Department of Corrections, 497 Mich. 290 (places burden on plaintiff to prove an exception to governmental immunity applies)
- Milot v. Department of Transportation, 318 Mich. App. 272 (addresses requirement to provide notice under the highway exception to the GTLA)
- Plunkett v. Department of Transportation, 286 Mich. App. 168 (explains substantial-compliance principles for notice content, distinguished from proper-service issues)