STRENG v BOARD OF MACKINAC COUNTY ROAD COMMISSIONERS
Docket No. 323226
Court of Appeals of Michigan
May 24, 2016
315 Mich App 449
Submitted December 1, 2015, at Lansing. Decided May 24, 2016, at 9:20 a.m. Leave to appeal denied 500 Mich 919.
Karen L. Streng brought a negligence action
The Court of Appeals held:
1. Under the GTLA, governmental agencies are generally statutorily immune from tort liability. The highway exception to the GTLA,
2. To be sufficient, a claimant‘s notice of injury and defect to a governmental agency must substantially comply with statutory requirements. While the written notice and the text of the police report located the accident a mile south of where the accident occurred, the police report drawing that accompanied the report properly located it on a curve that only existed in the correct location of the accident. Plaintiff‘s description of the accident was legally sufficient under
3. Under
4. In Hannay v Dep‘t of Transp, 497 Mich 45 (2014), our Supreme Court held that the phrase “liable for bodily injury” as used in the motor vehicle exception to the GTLA,
Affirmed.
- GOVERNMENTAL IMMUNITY - HIGHWAY EXCEPTION - COUNTY ROADS UNDER JURISDICTION OF COUNTY ROAD COMMISSION - NOTICE REQUIREMENTS - HIGHWAY CODE.
Under the highway exception to the governmental tort liability act,
MCL 691.1402 , governmental agencies are liable for bodily injury or damage to property resulting from the failure of the agency to properly maintain highways and county roads in reasonable repair so that they are reasonably safe and convenient for public travel; when a person is injured on a county road under the jurisdiction of a county road commission, the claimant must follow the notice requirements ofMCL 224.21(3) of the highway code,MCL 220.1 et seq., when notifying the agency of his or her negligence action. - GOVERNMENTAL IMMUNITY - HIGHWAY EXCEPTION - COUNTY ROADS UNDER JURISDICTION OF COUNTY ROAD COMMISSION - NOTICE REQUIREMENTS.
Under the highway exception to the governmental tort liability act,
MCL 691.1402 , governmental agencies are liable for bodily injury or damage to property resulting from the failure of the agency to properly maintain highways and county roads in reasonable repair so that they are reasonably safe and convenient for public travel; when a person is injured on a county road under the jurisdiction of a county road commission,MCL 224.21(3) requires that service of the action be on the county clerk and the chairperson of the board of county road commissioners. - GOVERNMENTAL IMMUNITY - HIGHWAY EXCEPTION - LIABLE FOR BODILY INJURY - DAMAGES - ECONOMIC AND NONECONOMIC DAMAGES.
Under the highway exception to the governmental tort liability act,
MCL 691.1402 , governmental agencies are liable for bodily injury or damage to property resulting from the failure of the agency to properly maintain highways and county roads in reasonable repair so that they are reasonably safe and convenient for public travel; the phrase “liable for bodily injury” means legally responsible for damages flowing from a physical or corporeal injury to the body; a plaintiff who suffers bodily injury may recover under the defective-highway exception tort damages that naturally flow from the injury, including economic and noneconomic damages; noneconomic damages may include damages for loss of the ability to work and earn money, pain and suffering, and mental and emotional damages.
Kluczynski, Girtz & Vogelzang (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.
STEPHENS, J. 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
I. BACKGROUND
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
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.
II. THE GOVERNING NOTICE PROVISION
As a preliminary matter, we must resolve the conflict as to which notice provision governs this case:
The GTLA grants immunity from tort liability “if the governmental agency is engaged in the exercise or discharge of a governmental function.”
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).]
(1) 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.
(2) 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 governmental agency.... [
MCL 691.1404 .]
(2) A county shall keep in reasonable repair, so that they are reasonably safe and convenient for public travel, all county roads, bridges, and culverts that are within the county‘s jurisdiction, are under its care and control, and are open to public travel. The provisions of law respecting the liability of townships, cities, villages, and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control apply to counties adopting the county road system.
(3) An action arising under subsection (2) shall be brought against the board of county road commissioners of the county and service shall be made upon the clerk and upon the chairperson of the board. The board shall be named in the process as the “board of county road commissioners of the county of ..........“. Any judgment obtained against the board of county road commissioners in the action shall be audited and paid from the county road fund as are other claims against the board of county road commissioners. However, a board of county road commissioners is not liable for damages to person or property sustained by a person upon a county road because of a defective county road, bridge, or culvert under the jurisdiction of the board of county road commissioners, unless the person serves or causes to be served within 60 days after the occurrence of the injury a notice in writing upon the clerk and upon the chairperson of the board of county road commissioners. The notice shall set forth substantially the time when and place where the injury took place, the manner in which it occurred, the known extent of the injury, the names of any witnesses to the accident, and that the person receiving the injury intends to hold the county liable for damages. This section applies to all county roads whether they become county roads under this chapter or under Act No. 59 of the Public Acts of 1915, being sections 247.418 to 247.481 of the Michigan compiled laws.
There are several potential conflicts between the notice provisions of the GTLA and those of
Later, in Rowland, 477 Mich at 205-206, the Supreme Court traced the history of governmental immunity and explained that, until 1970, it was well established that the defendant governmental agency did not need to show it was actually prejudiced by an untimely notice; the notice provisions were enforced according to their plain language. However, the Court noted a line of cases—starting with Grubaugh v St Johns, 384 Mich 165; 180 NW2d 778 (1970), abrogated by Rowland, 477 Mich 197, and culminating in Hobbs v Dep‘t of State Hwys, 398 Mich 90, 96; 247 NW2d 754 (1976), over-
ruled by Rowland, 477 Mich at 200, and Brown II, 452 Mich at 356-357—in which the Court had ruled unconstitutional the Legislature‘s enactment of laws treating governmental tortfeasors differently from private tortfeasors. Those same cases engrafted onto the GTLA the requirement that the governmental defendant show it suffered actual prejudice from an untimely notice to enjoy immunity. Rowland, 477 Mich at 206-209. Ultimately, the Rowland Court overruled Hobbs and Brown II:
The simple fact is that Hobbs and Brown [II] were wrong because they were built on an argument that governmental immunity notice statutes are unconstitutional or at least sometimes unconstitutional if the government was not prejudiced. This reasoning has no claim to being defensible constitutional theory and is not rescued by musings to the effect that the justices “‘look askance‘” at devices such as notice requirements or the pronouncement that other reasons that could supply a rational basis were not to be considered because in the Court‘s eyes the “only legitimate purpose” of the notice provisions was to protect from “actual prejudice.” [Rowland, 477 Mich at 210 (citations omitted).]
In conclusion, the Rowland Court repudiated the entirety of the rulings in Hobbs and Brown II, stating, “Nothing can be saved from Hobbs and Brown [II] because the analysis they employ is deeply flawed.” Id. at 214. The Court stated that its decision would “return our law to that which existed before Hobbs and which was mandated by
The Rowland Court made no mention of
applied the GTLA‘s notice period
Other than Brown II, no precedential case has substantively considered the potential conflicts between the highway code and the GTLA. It appears that “the sixty-day notice provision [of
In addition to the notice period, there are other inconsistencies in the language of the two statutes that have not been addressed by precedent. The GTLA allows service on “any individual, either personally, or by certified mail, return receipt requested, who may lawfully be served with civil process directed against the governmental agency,” without expressly requiring notice in writing,
Reported cases discussing the duty imposed on counties as arising under
“[W]here there is an apparent conflict between two statutes, a fundamental rule of statutory construction requires that the specific statute control over the general and that the specific statute be viewed as an exception to the general rule.” In re Johnson Estate, 152 Mich App 200, 205; 394 NW2d 136 (1986). We are also required, however, to harmonize the two statutes whenever possible. “Statutes that address the same subject or share a common purpose are in pari materia and must be read together as a whole.” People v Harper, 479 Mich 599, 621; 739 NW2d 523 (2007).
In accord with this reasoning, in Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 596; 363 NW2d 641 (1984), the Court explained its approach when interpreting the GTLA: “In resolving the questions presented by this [governmental immunity] act, our goal has been to create a cohesive, uniform, and workable set of rules which will readily define the injured party‘s rights and the governmental agency‘s liability.” Having two sets of rules that vary depending on the type of agency being sued is contrary to this goal of uniformity. Moreover and importantly, a dual system of interpretation fails to consider the effect of the second sentence of
A close reading of the language of
In sum, appellate courts appear to have overlooked the time limit, substantive requirements, and service procedures required by
A. SUFFICIENCY OF THE NOTICE
Under
In Pearll v Bay City, 174 Mich 643, 648-649; 140 NW 938 (1913), the plaintiff‘s notice gave the wrong name of the street where she fell and was injured; however, the facts showed that the street was generally known by that name and bore a signpost with that name. The Court held that the notice substantially complied with the city charter‘s requirement, which was worded nearly identically to the relevant part of
Similarly, here, the description plaintiff provided was sufficient to put defendant on notice of the claim and to investigate possible sources of further information from witnesses. The written notice, including the text of the police report, placed the location about a mile south of where the accident actually occurred. However, the drawing in the police report showed that the accident occurred on the curve of the road, and defendant‘s own garage foreman testified that there was no other curve on the highway. “[T]o be legally sufficient, a notice must contain a description of the place of the accident so definite as to enable the interested parties to identify it from the notice itself.” Overton v Detroit, 339 Mich 650, 657; 64 NW2d 572 (1954), quoting Barribeau v Detroit, 147 Mich 119, 125; 110 NW 512 (1907). In this case, there is no evidence that the “interested parties” were unable to identify the location from the notice that was provided. The written and drawn descriptions render the notice sufficient under
B. SUFFICIENCY OF THE SERVICE
Under the “last antecedent” rule of statutory construction, “a modifying or restrictive word or clause contained in a statute is confined solely to the immediately preceding clause or last antecedent, unless something in the statute requires a different interpretation.” Stanton v Battle Creek, 466 Mich 611, 616; 647 NW2d 508 (2002). Because “the clerk” in other sections of the act is used to refer to the county clerk (see, e.g.,
The statute‘s legislative history also supports this conclusion. Originally, the statute allowed service of a complaint on “the chairman of the board of supervisors or the county clerk” and had no notice requirement. 1909 PA 283. This was amended by 1919 PA 388, which added the requirement of notice served within 60 days “upon the county clerk or deputy county clerk.” The Legislature then amended both the service of the complaint and the service of notice provisions; service of the action was on “a member of the board of county road commissioners of the county and upon the clerk of the board,” and service of notice of intent was on “a member of such board of county road commissioners and the clerk and upon the chairman of the board of county road commissioners of such board.”
Regardless, defendant was properly served. In this case, plaintiff served her notice of intent on both the chairperson of the county board of road commissioners and the county clerk.
III. DAMAGES
Appellant also argues that the plain language of
This issue presents a question of statutory interpretation, which we review de novo. Id. at 57.
The Michigan Supreme Court held in Hannay that the phrase “liable for bodily injury” in
It is a longstanding principle in this state‘s jurisprudence that tort damages generally include damages for all the legal and natural consequences of the injury (i.e., the damages that naturally flow from the injury), which may include damages for loss of the ability to work and earn money, as well as pain and suffering and mental and emotional distress damages. [Id. at 65.]
The Court emphasized that “‘damages’ and ‘injury’ are not one and the same—damages flow from the injury.” Id. at 64. Under this analysis, a person suffering an injury because of an improperly maintained highway may recover the damages naturally flowing from that injury.
However, defendant argues that Hannay is limited to the motor vehicle exception, and that the rhetorical differences between the two statutes preclude extending Hannay‘s holding to the highway exception. The text of Hannay itself instructs otherwise. The Hannay Court found applicable the analysis employed in In re Bradley Estate, 494 Mich 367; 835 NW2d 545 (2013), which did not involve the motor vehicle exception, in which the Court had interpreted the phrase “tort liability” found in “the GTLA‘s broad grant of immunity,
[O]ur interpretation of “tort liability” in
MCL 691.1407(1) informs how to interpret the phrase “liable for” in the motor vehicle exception. We see no reason why this Court‘s prior analysis of the word “liability,” which stems from the word “liable,” should not likewise apply in this case, particularly given that the phrases “tort liability” and “liable for” are contained within the same statute—the GTLA. [Id. at 61-62, citing Robinson, 486 Mich at 17 (“[Unless the Legislature indicates otherwise, when it repeatedly uses the same phrase in a statute, that phrase should be given the same meaning throughout the statute.“).]
In this case, the wording of the two statutory exceptions is substantially similar. Because the statutes of the GTLA should be read with consistency where possible, we conclude that the reasoning set forth in Hannay should be applied to
The essential language of the highway exception reads, “A person who sustains bodily injury or damage to his or her property... may recover the damages suffered by him or her from the governmental agency.”
Affirmed.
SAAD, P.J., and O‘BRIEN, J., concurred with STEPHENS, J.