Wednesday, November 30, 2011

Notice should be as exact as possible.. doing your best is not good enough.

Holding that the trial court erred by denying the defendant's motion for summary disposition on the grounds that plaintiff's claims were barred by governmental immunity, the court reversed and remanded for entry of an order granting defendant's motion for summary disposition. Plaintiff was involved in a single-vehicle motorcycle accident while travelling southbound on Southfield Road, somewhere within approximately ¼ mile of Ford Road. Within 15 days of the accident, plaintiff's counsel sent a letter to defendant that described the location of his accident as "at on [sic] the Service Drive for Southbound Southfield Freeway at Ford Road in the City of Dearborn, MI[,]" and described the nature of the defect that caused his accident as "defective roadway" and "defective pavement." Seven months after the accident, plaintiff filed this lawsuit in the Court of Claims, alleging that defendant's negligence caused his injuries. Defendant moved for summary disposition pursuant on the ground that plaintiff's claims were barred by governmental immunity, specifically arguing that plaintiff did not provide defendant with the statutorily required notice contained within MCL 691.1404(1). The trial court disagreed. At issue was the "highway exception." Michigan statutory law provides that an injured person must timely notify the governmental agency having jurisdiction over the roadway of the occurrence of the injury, the injury sustained, the "exact location and nature" of the defect, and the names of known witnesses. Plaintiff argued that his description of the location of the roadside defect was adequate, because he described the road he was on, the direction he was heading, and the closest cross street. Plaintiff also argued that he provided the best possible notice under the circumstances, because he was seriously injured in the accident and taken away by ambulance. He similarly argued that his description of the nature of the defect as "defective pavement" was sufficient, because it indicated that the pavement itself caused the injury rather than a foreign object, and because it was the best description he could make under the circumstances. The court held that both plaintiff's description of the location of the defect and his description of the nature of the defect were vague and imprecise. The area in question was a stretch of highway approximately ¼ mile long, yet plaintiff did not provide reference to any landmarks that might have assisted defendant in narrowing down the area, nor did he attach the accident report, photographs, or other descriptive material that would have provided a more exact location. Neither plaintiff's description of the defect as both "defective pavement" and "defective roadway," nor the vague description of the location as the service drive near a particular road - an area of roadway that is approximately ¼ mile long - provided the notice required by the statute. Though the court and the Supreme Court have upheld the use of the phrase "defective sidewalk" as sufficiently descriptive of the nature of the defect, that was only when "[c]oupled with the specific description of the location, time and nature of injuries" that allowed the notice to comply with the statute. Nothing in the notice provided by plaintiff allows the two descriptions to be read together in a manner to narrow the location of the incident.

No comments:

Post a Comment