*OR, ANOTHER REASON WHY I'M GLAD I DIDN'T ENCOURAGE MY KIDS TO ATTEND LAW SCHOOL"
According to Michigan law, the government has granted itself a right it does not share with its private citizens: that is, in most instances, it is not responsible for its own carelessness. (Note: Some might argue that, in recent years, Michigan judges have created law wherein the private citizen is responsible for everybody else's carelessness-and they'd be right, by and large.)
Editorial comments aside, the doctrine of governmental immunity has been the law in Michigan for many years. It has always been a challenge to explain to an injured person that the government is not responsible to pay the medical bills, lost wages, and other losses incurred as a result of its negligent actions. Disbelief is generally the easiest response to deal with. Apologizing for the system and the attorney's impotence doesn't help much.
But, in its beneficence, Michigan government has carved out a few exceptions to the general immunities it has granted itself. This post deals with one such exception-the so-called "highway exception" (MCLA 691.1402 and MCLA 691.1402a, governing sidewalks). Now, the exception comes with several strings attached-strings that don't apply to injury claims against private citizens or businesses. (And by strings, I do not mean to include the judicially created restrictions on the exception. For instance, a highway intersection with a traffic light showing green in all directions is no longer a defective highway. No exception. No claim for the injured.) The string attched to today's lesson, boys and girls, is the Notice of Injury and Defect in HIghway provision of MCLA 691.1404.
Put simply, notice of an injury and the defect that caused it must be given to the responsible agency within 120 days of the injury. The notice may be personally served or sent by Certified Mail to whomever could be served with a lawsuit of any kind. In about 75% of cases, in my experience, the governmental agencies do absolutely nothing with the notices received.
The notice is, however, a condition to any recovery for the injuries sustained.
This brings me to the Michigan Court of Appeals case of Watts v City of Flint, Case No. 307686, decided on January 17, 2013. In the Opinion we learn nothing of Ms. Watt's injuries, the nature of the defect that caused them, or even the date of the accident. At the trial court level, the City of Flint asked that the case be thrown out, claiming that proper notice was not given according to the statute. The parties agreed that notice of the injury had been sent by the plaintiff within the time prescribed. The parties agreed that the notice had been received by the city within the time prescribed. The parties agreed that the city clerk was a proper official to receive the notice. The city did not claim that the notice provided insufficient information about the injury or the defect. The Opinion did not indicate that the city took any action based on the notice (such as investigating the incident). Based on my experience with the City of Flint, I would bet money that it did absolutely nothing based on the notice of injury.
However, all this did not prevent the City of Flint from filing a Motion for Summary Dispostiion, claiming that the notice of injury was not proper. And why is this? Because the notice-sent timely, received timely by the correct offical and containing the required information-was sent by regular mail, not by Certified Mail, return receipt requested.
The trial court denied the Motion, ruling that the plaintiff had substantially complied with the notice provision-and so she had. It doesn't take a genius to figure out that Certified Mail part of the statute was intended to protect cities, like Flint, from claims that the notice was "lost in the mail". But, in the Watts case, everyone agreed that the notice was received. Well, our "Rule of Law" Court of Appeals reversed the trial court and dismissed Ms. Watts case. The actual content of the notice, all the facts, the realities of the case, the purpose and intent of the law, and common sense all combined to mean precisely nothing. Apparently, in Michigan we don't have the "Rule of Law" so much as the "Law of Rules". And the rules always seem to benefit the government and business interests at the expense of the common man.
As an aside, Michigan used to have a line of case authority that held that a governmental agency could not successfully challenge the sufficiency of a notice unless it could show that its ability to defend the claim had been affected by the defect. Our "Law of Rule" judges have eliminated such "judicial activism". And justice in Michigan has been well served, has it not?
When arguing Motions in Court, I have told judges that if I were a lawyer representing a government agency, I would file a Motion challenging the notice in every case, no exceptions. The attorney can always argue that the description of the location and description of the defect can never be exact enough to suit the statute. There are many hyper-technical defects that can be claimed. Why not give Summary Disposition a try?
And there is a technical claim that even the most enterprising defense attorney has not yet tried. I don't want to give away too much, but let me just say that, at our firm, we now prepare the notice, and then call the client into the office. We then give them the notice and escort them to the mailbox and watch them as they drop it in the mailbox.
As long as the "Law of Rules" progresses, the "Rule of Justice" regresses. Welcome to the Michigan judicial system. If it seems like something out of medieval England, I congratulate you on your powers of perception.
With a "Hey, Non, Nonny (and a Hot Cha Cha")-apologies to Rufus T. Firefly (Duck Soup)
Postscript. I now have a case wherein a statutory notice of injury and defect was timely sent to a municipality. It did nothing. A subsequent lawsuit was filed and served. The municipality was served and again it did nothing. The time to answer the summons and complaint (and then some) elapsed, and eventually a default was entered and served according to the Michigan Court Rules. Two weeks thereafter I receive a call asking me to be a gentleman, and set aside the default, no questions asked. "What do you do, what do you do?"-apologies to Howard Payne (Speed).
